State of Ohio City of Columbus In the matter of the Arbitration Between: Fraternal Order of Police : Grievance No. 12-2021 Capital City Lodge #9 and : Opinion and Award City of Columbus : Margaret Nancy Johnson Department of Public Safety : Arbitrator ‘Statement of the Case This matter came on for hearing on October 7 and 8, 2021, in a conference room at the Columbus Police Training Academy in Columbus, Ohio, At the time of the occurrences under consideration, the City of Columbus, Division of Police, hereinafter “City” or “Division” and the Fraternal Order of Police, Capital City Lodge No 9, hereinafter “Union” or “FOP,” were parties to and operating under a Collective Bargaining Agreement (Joint Exhibit 1). ‘The Agreement included a grievance procedure for the resolution of disputes arising from the terms and conditions of employment set forth therein. Pursuant to the grievance mechanism, the parties selected Margaret Nancy Johnson to arbitrate the pending dispute and render a final and binding resolution. Similar to other grievances filed by the Union within the past year, the pending controversy arose from application of contract terms during a period of extraordinary social unrest precipitated by the May 27, 2020 Killing of George Floyd while in the custody of Minneapolis police. In response to protests throughout the City in late May and early June, 2020, some of which escalated into riots, the City mobilized its Division of Police to protect persons and property. Interactions between Police Officers and the public resulted in a significant number of use of foree complaints filed by residents present at the protests/riots. In response to the citizen complaints, the City employed and assigned a Public Safety Deputy Director, Richard Wozniak, to conduct investigations into potential criminal misconduct by Officers. A Special Prosecutor was selected to assist in these criminal investigations. When efforts by the Deputy Director to secure voluntary statements from Officers proved ineffective, the City took action to compel Police Officers to cooperate in the criminal investigations. On March 4, 2021, the Deputy Director sought “subpoenas in aid of misdemeanor investigations” in the Franklin County Municipal Court (FOP Exhibits 1 and 6). Pursuant to a Complaint for a Declaratory Judgment, Temporary Restraining Order and Preliminary and Permanent Injunctive Relief, filed in the Franklin County Court of Common Pleas, the FOP challenged the propriety of the subpoenas (FOP Exhibit 2). In its Complaint on behalf of five members of the bargaining unit, the FOP alleged the Collective Bargaining Agreement between the parties “prohibits the City from forcing a member to submit to questioning regarding a criminal investigation, whether as a witness or focus of the investigation” (/d. p. 13). On March 25, 2021, the City through orders from the Internal Affairs Bureau, directed members to be interviewed by Deputy Director Wozniak (FOP Exhibits 3 and 7). In the Interview Notification, the specific circumstances to be addressed were listed and the Member was informed “you will not be criminally charged by the City of Columbus relative to the listed incident/s which are the subject of thisinvestigation.” (Id). In addition to other contractual rights, the Member was advised that a Sergeant with the Internal Affairs Office would be in attendance, that the Member would be provided Garrity Rights, and that a Lodge Representative could be present. ‘Notification included an “order{] by the authority of the Chief of Police to report to the office of the Director of Pubic Satety...to be interviewed as a witness regarding the above referenced criminal investigation” (Id). The following day, March 26, 2021, the FOP filed the instant grievance alleging the order “exposes the supervisors to potential personal civil liability for disclosing information obtained under Garrity in a criminal investigation and the use of compelled statements is strictly prohibited.” Subsequent to a denial of the grievance, the Union appealed the dispute to arbitration which was scheduled and proceeded as stated above. At the arbitration proceeding Assistant City Attomey Stefanie Coe argued the case on behalf of the City. Assistant City Attorney Paul Bemhart filed the Post-Hearing Brief for the City, Nicole Wannemacher and Lathan Lipperman, Counsel for the FOP, Capital City Lodge No. 9, represented the Union throughout the proceeding. Both parties had the opportunity to make opening statements, to examine and cross-examine witnesses under oath, to introduce into the record documentary evidence, and, closing arguments having been waived, to file post hearing briefs Upon receipt of the Briefs the hearing was declared closed and this opinion and award is now issued in compliance with the terms of the Agreement between the parties. In its Grievance, the FOP alleges ty witness interviews in criminal investigations violates multiple provisions of the Collective Bargaining Agreement as well as the Ohio and United States Constitutions (Joint E 2). Contract violations cited by the Union in its grievance include: Articles 2.3; 2.7; 8.9; 9; 14, and any other Articles that may apply. As a remedy for the alleged infraction the FOP seeks immediate discontinuance of the practice, rescission of orders compelling members to assist in criminal investigations, and disregard of all information obtained in the course of witness interviews in violation of the Agreement. On April 29, 2021, a Step 4 Meeting was held in a conference room at the Office of the Safety tor. A Step 4 Response issued by the Safety Director on May 13, 2021 determined the “the Lodge did not sustain [its] burden of proof” and, accordingly, the grievance was denied. The decision of the Safety Director was appealed to arbitration. Stipulations At the Arbitration hearing the parties stipulated that the “required grievance steps and timing were followed” and that the “issue is properly before the arbitrator.” The parties also stipulated as to the statement of the issue set forth below. Issue Does the collective bargaining agreement prohibit the City of Columbus from compelling members to participate in an investigation that may result in criminal charges against another member? If so, what shall the remedy be? Contract Provisions The following provision from the Agreement between the parties has given rise to the pent dispute. As an aide to contract analysis, additional provisions negotiated by the parties are referenced in the Discussion hereinafter.ARTICLE 8-INTERNAL INVESTIGATION PROCEDURES se 8.9. Insubordinati Ifa member has been advised that the investigation may result in criminal charges, the member’s refusal to answer questions or to participate in the investigation shall not be considered insubordination or like offense. In all other circumstances, before a member may be charged with insubordination or like offense for refusing to answer questions or participate in an investigation, the member shall be advised that such conduet, if continued, may be made the basis for such a charge. Position of the Parties FOP The FOP contends that the clear and unambiguous language of Article 8 of the Agreement between the parties restricts compelling a bargaining unit member to participate in a criminal investigation of another unit member, Whereas other contract provisions differentiate between “focus” members and “witness” members, Article 8.9 makes no such distinction but applies to any and all bargaining unit members. To limit application of Article 8.9 to “focus” members would improperly add to the negotiated language. Article 8.9 prohibits the City from compelling members to participate in criminal investigations under threat of insubordination or like offense and that prohibition must be enforced Should any ambiguity be found to exist, analysis of the language as argued by the FOP is consistent with principles of contract interpretation. Clearly indicating an intent to make a distinction, the parties reference “focus” members and “witness” members throughout the Agreement. Intent of the parties is to distinguish between the investigatory role of a member. Without language identifying a “focus” witness, the clear intent of Section 8.9 is to protect all members from compelling testimony in criminal investigations. Indeed, in the last round of negotiations, the City attempted to modify the exact language now in consideration by inserting additional language. The City proposed changing the language in Article 8.9 so that the first sentence refers only when an investigation may result in criminal charges “against that member.” As the FOP rejected that proposal, the City cannot now achieve in arbitration what it failed to secure in negotiations. In accordance with principles of interpretation, absence of any language qualifying the member in Article 8.9 must be deemed deliberate. The interpretation argued by the City would lead to harsh, absurd and nonsensical results. $ testimony elicited under threat of insubordination or termination would not be permissible in a subsequent prosecution, the interpretation argued by the City makes no sense. Because it subj witness member to a potential dereliction of duty charge, it is unduly harsh. Additionally, bs Agreement already precludes the compelled testimony of a “focus witness,” the interpretation of Section 8.9 argued by the City is redundant, an interpretation to be avoided. The long-standing practice of the parties further sustains the position of the Union. In spite of the ‘many criminal investigations of members, the City has never before coerced any member into participation, Moreover, the investigations in question do not comport with City Code, pursuant to which, the Deputy Director is not authorized to conduct these criminal investigations. By Code, the City is prohibited from coercing testimony in a misdemeanor investigation. Such compulsion is also prohibited by the United State Constitution, Supervisors who receive statements under Garrity protections cannot disclose that information to an investigator or prosecutor. Even derivative use of Garrity information is prohibited. Indeed, mere knowledge of the contents of a Garrity statement precludes testimony by a member having such knowledge. Providing the contents of a Garritized statement exposes the supervisor to liability for that constitutional infraction. 3Representatives in an internal interview as well as reviewing Supervisors should similarly not testify in a subsequent criminal investigation. The grievance must be sustained. City The City is responsible for ensuring that its Police Officers respond only with appropriate force during civil disturbances such as occurred in the City following the George Floyd killing by a Minneapolis Police Officer in May 2020. Having received an extensive number of use-of-force complaints from City residents, the City appointed a Deputy Director of Public Safety and a Special Prosecutor to investigate potential criminal misconduct by its officers during the Floyd riots/protests. When efforts of the Deputy Director to secure voluntary information from Officers proved ineffective, the City was forced to order witness officers to cooperate in the criminal investigation. ‘On March 25, 2021, through orders from the Internal Affairs Bureau and at the direction of the Deputy Director, the City ordered witness officers under threat of insubordination to be interviewed as, part of the criminal investigation. As a consequence of this order the Union filed a grievance challenging the contractual authority of the City to compel witness testimony. The City contends that Article 8.9 of the Agreement between the parties clearly indicates intent to permit the City to compel interviews of witness officers under threat of insubordination in criminal investigations. Article 8.9 of the Agreement was clarified during collective bargaining for the 1990 contract between the parties. The City retained its notes from those negotiations and it now argues that those notes include discussion between the parties concerning the Union proposal regarding Article 8.9. Those contract discussions clearly establish mutual intent that while a focus witness could not be compelled to self incriminate, the City could compel a witness-member to provide information in criminal investigations conducted by the City. FOP made no representation at that time that the language in Article 8,9 referred to witness officers. Indeed, the City would never have agreed to shield officers from prosecution by allowing witness officers to refuse cooperation in a criminal investigation. Witness officers cannot ineriminate themselves when they are merely a witness to a criminal act. Article 8.9 does not apply and was never intended to apply to witness officers. Every contract imposes a duty of good faith bargaining and fair dealing The Union should not now be permitted to renege on the bargain it made in 1990 which has remained in the contract unchanged since then. Consistent with the authority set forth in Article 8, the City has over the years established a long-standing practice of interviewing a witness in criminal investigation against another officer. Garrity rights are not implicated when a witness officer answers questions about events for which they were eye-witnesses. Nor has the Union ever challenged the contractual right of the City to interview witness officers. ‘The order issued to witness members provided notice that the officer would “not be criminally charged by the City of Columbus relative to the listed incidents...” In exchange for testimony, the witness officer was given immunity from prosecution. This promise of immunity is consistent with the rule established by the United States Supreme Court that a public employer may dismiss an employee who refuses to answer investigative questions, but it may not use any incriminating statements secured in a compelled interview in a criminal prosecution. This rule has been extended by the Supreme Court to exclude any evidence against a declarant which is derived from compelled testimony. The conduct of the City now disputed by the Union is consistent with the protections against self-incrimination enunciated by the United States Supreme Court. ‘The City is compelling witness officers to answer questions about what they saw other officers do. Such testimony does not pose any threat to Fifth Amendment protections. No witness officer is being 4asked to incriminate him/herself in violation of the United States Constitution. Nor is the City asking Officers to divulge Garrity protected information. Rather, Officers are being asked what they observed. Each witness called by the Union at the Arbitration hearing testified that he/she could distinguish between what was seen and what had been told in a Garrity protected interview. Evidence establishes that the City has conducted multiple criminal investigations against Police Officers over many years. Itis routine to interview witness-members as to what they may have observed. Such interviews do not violate either the United States Constitution or the Agreement between the parties ‘The grievance must be denied, ssi Qn Background This contract interpretation dispute arises from response of the City to allegations of police misconduct during a time of unprecedented social disturbance. Like many other cities, Columbus, Ohio, experienced wide-spread civil unrest in late May and early June, 2020, triggered by the George Floyd killing while in police custody in Minneapolis, Minnesota. _In an effort to protect persons and property from unlawful activity during the protests, the Division of Police mobilized an extensive police presence, At different areas throughout the City, law enforcement officers implemented a variety of resources available for the purpose of crowd dispersal (Rector Testimony). ‘Subsequent to the protests/riots, the City received a significant number of citizen complaints regarding police tactics. Because of concems regarding excessive use of force and possible misdemeanor assaults committed by some Police Officers on protesters, the City assigned Public Safety Deputy Director, Richard Wozniak, to conduct investigations into potential criminal misconduct committed by Officers. Initially, Wozniak secured voluntary interviews with members of the Division of Police, but when Officers declined to be interviewed, Wozniak endeavored to compel investigative interviews. On March 4, 2021, Wozniak sought Investigative Subpoenas (See FOP Exhibits 1 and 6) from the Franklin County Municipal Court in Columbus, Ohio, directing appearances to answer questions concerning misconduct at specified locations. Sergeant Caroline Castro, for example, was issued a subpoena regarding: the events surrounding the alleged assault on protesters on the night of May 29, 2020 at E, Broad St. and N. High St. And Broad and Marconi and on the day of May 30 at E. Broad Street and N. Grant and at Pearl Alley just North of Broad Street in Columbus Ohio. ‘The Subpoenas required bargaining unit members to appear and waned that “failure to comply with this court ordered Investigative Subpoena may result in a contempt of court citation” (/d). Five recipients of the above referenced Subpoenas, including Castro, Lieutenant Lowell Rector, and Sergeant Justin Coleman, all witnesses at the arbitration hearing, filed a complaint for a Declaratory Judgment on March 19, 2021, with the Franklin County Court of Common Pleas (FOP Exhibit 2). In the Complaint Petitioners challenged the constitutionality of the Columbus Code pursuant to which the Subpoenas had been issued. ‘Thereafter on March 25, 2021, Sergeants Castro and Coleman received by e-mail an Interview Notification issued by the Internal Affairs Bureau at the direction of the Deputy Director (FOP Exhibits 3 andt 7). The Notification issued to the Sergeants advised that they were a “witness officer pertaining to a criminal investigation” involving specifically identified “events” (Italics added). In conclusionthe Notification advised, “You are hereby ordered by the authority of the Chief of Police to report to the Office of the Director of Public Safety located at 77 North Street, 5" floor on March 31, 2021 at 7:00 p.m. to be interviewed as a witness regarding the above referenced criminal investigation” (Id). The day following the Notification, on March 26, 2021, the FOP filed the pending grievance. Ata Fourth Step Hearing on April 29, 2021, the parties agreed to resolve the dispute through the grievance mechanism rather than through judicial procedures previously initiated (Joint Exhibit 2) The March 26, 2021 Grievance In processing this grievance, the FOP has cited a number of Contract provisions, including Article 8.9, which the City has allegedly violated, The Statement of the Grievance and Relevant Facts state the following: On or about March 25, 2021, the Lodge received notice that the City of Columbus, through orders from the Internal Affairs Bureau and at the request of Deputy Director Richard Wozniak and Special Prosecutor Garber, is ordering Lodge Members to appear and answer questions in a criminal investigation under threat of insubordination and termination for failing to comply. This exposes the supervisors to potential personal civil liability for disclosing information obtained under Garrity in a criminal investigation and the use of compelled statements is, strictly prohibited. This is a direct violation of multiple provisions of the Collective Bargaining Agreement as well as the Ohio and US Constitutions. In remedy the FOP requests discontinuance of the practice, rescission of the orders compelling interviews, and a disregard of information already obtained in violation of the Agreement. During the Step 4 Hearing the Union argued that Article 8.9 prohibits the City from compelling any member to testify against a focus officer in a criminal investigation. While other Articles differentiate between “focus” and “witness” members, Article 8.9 does not make such a distinction and, therefore, the Union maintained the contractual prohibition upon compelling investigative interviews pertains to all members and not just focus members. The Union also cited legal ramifications as well as State and Federal Constitutional issues. Ina lengthy discussion the Public Safety Director reviewed the 1990 bargaining notes of the City pertaining to a modification of Article 8.9 sought by the Union. Applying principles enunciated in the Restatement (Second) of Contracts, the Public Safety Director determined the Union could not in good faith change the meaning which the parties had mutually attributed to the negotiated language. In its Post- hearing Brief, the City repeated the reference to the Restatement (Second) of Contracts and to the bargaining notes of the City; however, neither the notes nor testimony about the notes were introduced at the arbitration hearing. Denying the Grievance, the Safety Director stated that the City would never have agreed to shield officers from criminal investigations by precluding witness member interviews. Since witness ‘members cannot incriminate themselves, the Public Safety Director determined the City may logically compel such officers to cooperate in a criminal investigation against a focus member. Internal Investigation Procedures and Purposes Article 8 of the Agreement between the parties addresses negotiated Procedures to be followed in investigations by the Internal Affairs Bureau as well as. those conducted by the Office of Public Safety. Consisting of seventeen (17) sections-- one (1) of the two (2) most detailed and comprehensive Articles in the entire Agreement-- Article 8 includes references to potential departmental and criminal charges, 6as well as to “focus” and “witness” members. Specifically in dispute is language used in Section 8.9, wherein the parties have agreed that in an investigation that may result in criminal charges, “the member's refusal to answer questions or to participate in the investigation shall not be considered insubordination or like offense.” As the language of Section 8.9, captioned Insubordination, makes no distinction between a “focus” or “witness” member, the Union maintains the City is clearly and unambiguously prohibited from charging any member with insubordination or like offense for refusing to answer questions in an investigation that may result in criminal charges. The City contends the first sentence of Section 8.9 protecting a member from charges of insubordination applies only to focus members and is intended to protect the focus member from self-incrimination, Article 8.9 Ambiguity Both parties reference Section 8.9 as the contract language giving rise to this dispute, requesting an interpretation consistent with established arbitral principles as well as applicable law. Although the FOP argues the contract language is clear and unambiguous, should an interpretation be required, then the Union assers its reading of the language is in accord with the Agreement as a whole, Constitutional protections, and judicial holdings. On the other hand, the City contends a mutual intent regarding the provision can be discerned from practice, bargaining history, applicable law, and logic. As has been stated previously, ambiguity may arise from context as well as from language. While an Arbitrator has no authority to add to or subtract from the written contract, still an Arbitrator is tasked with reading language so as to give meaning to words consistent with a mutual intent, context, and current circumstances. In accord with an authority cited by the Union, contractual commitments nelude not only those which “the text state[s}” but also those which the language “reasonably implies” (See Union Post-heating Brief, p. 9, italics added). In dispute is the identification of “member” used in Article 8, Section 8.9 wherein the parties have agreed that “if'a member has been advised that the investigation may result in criminal charges, the member’s refusal to answer questions or to participate in the investigation shall not be considered insubordination or like offense.” Whereas the Union contends any bargaining unit member may refuse to participate in a criminal investigation without being charged with insubordination, the City argues the language was meant to apply only to a focus member, or the member under investigation. Except for the focus member, the City submits all other members may be compelled to respond in a criminal investigation. The grievance filed by the Union seeks to preclude all members from compulsory criminal investigations. Past Practice The Union proposes that the well-established and binding practice of the City pursuant to Section 2.7 of the Agreement is to secure witness testimony through voluntary submissions by members. Evidence establishes and there is no dispute that, in the past, the City has interviewed many witness officers about potential criminal acts of other officers. Yet, Grievance Chair, Sergeant Mark Fester, testified on behalf of the FOP that the City has not previously “ordered” members to testify in criminal investigations. Without a specific instance, the FOP alleged that some members have, in fact, refused to participate. Fester stated that a member witness may “voluntarily” appear for an interview and on cross-examination he testified that interviews have been “requested.” Although prior interview notifications to witness members were not introduced into evidence by either party, Deputy Chief Timothy Becker testified for the City that witness officers have been directed” to appear for an internal investigation into possible criminality by another employee. In his experience with the Columbus Police Department, Becker stated no witness has ever “refused to come 7in” for an interview, such a refusal “would have been insubordination,” and the practice has been to require interviews (Becker Testimony). ‘As a technique in interpretation, past practice requires some evidence of mutual understanding. In its Brief, the Union argued "despite Chief Becker's testimony, the City did not produce a single written order as evidence that any member has ever been ordered to participate in a criminal investigation" (Union Post Hearing Brief, p. 18). Yet, since the witness member is the recipient of any such written notification, the Union, as the grievant in this matter, had the ability to document that a notification to appear is a "request" and not an "order." Additionally, the Union could have presented testimony from a member who had refused to comply in a prior investigation, In this instance neither party has established a mutually understood practice as to Section 8.9. There is no evidence of any “witness” ever being disciplined for non-compliance. Nor, on the contrary, is there evidence of a witness member ever refusing to appear for an investigatory interview prior to the pending instance. Absent supportive evidence of a well defined mutual intent, past practice has little value as an interpretative tool in this contract dispute. Bargaining History Both the Union and the City referenced bargaining proposals to sustain respective positions. Although bargaining history may be persuasive in contract interpretation cases, as with past practice, in this particular proceeding, bargaining proposals have little probative value. Arguing that the City should not achieve in arbitration what it could not secure in bargaining, the Union introduced proposals made by the City during recent negotiations (FOP Exhibit 8). The Union contends the City attempted to amend the language in Section 8.9 to conform to its present position. Such proposal arguably indicates an acknowledgment the language applies to all witness members and not just to focus members. ‘With those proposals, however, the City was merely seeking to clarify what it believed current language already intended. Rather than a complete revision of Section 8.9 including significant deletions and modifications, the City proposed several insertions to clarify what it perceived to be the meaning of the current contract language (Christopher Moses Testimony). An attempt to clarify or restate is not probative of a proper interpretation of ambiguous language. As to the City argument about bargaining history during negotiations in 1990, the bargaining notes cited by the City in its Post Hearing Brief and by the Director of Public Safety at the Fourth Step Hearing were never introduced into evidence at the arbitration hearing. Although rules of evidence are not strictly applied in arbitration, there is an expectation that documentation upon which a party is relying to interpret language will be identified and authenticated, then subjected to examination by an ‘opposing advocate. ‘Without introduction of purported documents into evidence at arbitration, reference and analysis in a Post-Hearing Brief as to bargaining notes have little persuasive weight. Absence of any evidence, testimonial or documentary, as to the notes and inability of the Union to address the content of those notes in cross-examination at arbitration diminishes the value of any argument pertaining to the 1990 negotiations. ‘Rather than reliance upon bargaining proposals or past practices, this contract interpretation dispute ‘must be resolved by analysis of language and consideration of applicable law. In order to discern the meaning of Article 8.9, the contract must be read as a whole and in relation to current legal precepts. Intent of the parties in addressing compelled testimony in Section 8.9 can only be discerned by a perusal of the entire Article, Moreover, in accord with principles of interpretation cited by the FOP in its Brief, language in Section 8.9 must be deemed to include the text as well as its reasonableimplications as discemed by analysis of applicable contract provisions (Union Post-Hearing Brief, p. 9%. Section 2.3 Legal References Absent a clear conflict with legal requirements the function of the Arbitrator is to interpret the contract and not the law. Nonetheless, in addition to what may be inferred by the language, contract terms must be read consistently with applicable laws. Contractual language cannot be interpreted or applied so as to deprive an employee of Constitutional protections which have been analyzed and adjudicated. In the case now pending both parties have cited multiple judicial cases and elicited professional testimony regarding the concept of "derivative use.” While those arguments are applicable only in regard to a member who has conducted, attended, or reviewed an internal investigation of "focus member," judicial dicta in the cited cases provide guidance in interpreting and analyzing ambiguous language pertaining to "witness" interviews. Section 8.9 Analysis Absence of the word “focus” in Section 8.9 does not indicate the provision pertains to any and all members who may be notified to participate in an investigation of potentially criminal conduct. Indeed, were such a restriction to be enunciated—the inability of the City to require “witness” member testimony--the City would be significantly curtailed in its internal investigations of potentially criminal Police Officer misconduct. As stated by the City, it would not have intended to “shield” Police Officers from the consequences of criminal conduct by relinquishing its right to require “witness members” to participate in an investigation into the conduct of another member (See City Post-Hearing Brief, p.8). Indeed, an interpretation which precludes the City from conducting an investigation into potential criminal misconduct of an officer by restricting its access to witness members cannot be sustained. ‘Throughout Article 8 the term "member" s not always modified by "focus" or "witness" but intent is discerned from the text. For example, in Section 8.5, without distinction, "Members shall be fairly apprised of the allegations and any known basic facts of the incident prior to questioning by the investigator.” The second paragraph of Section 8.5, however, applies to "focus" members even though that term is not expressly used. "A member will only be asked questions which relate to the allegations and any known basic facts of the incident... " unless the questioning leads to "additional allegations against the member." In that instance, the "member will again be advised" of potential criminal charges, identifying the member being interviewed as a "focus" member, Pursuant to Article 8.5, "focus members" are those who have been "informed" that they are the subject of an investigation which may result in a "charge, either departmental or criminal." It follows, then, that a member who has "been advised that the investigation may result in criminal charges," as stated in Section 8.9 is a "focus member.” The member who is the subject of an investigation has protections that are not afforded to members who are witnesse: As Section 8.6 already protects the focus member, the Union has argued that limiting Section 8.9 to “focus members" would be redundant. Section 8.6, however, addresses "legal rights" while Section 8.9 references contractual rights. Rather than a restatement of the legal rights of focus members, Section 8.9 delineates contractual protections. The first sentence of Section 8.9 refers to the "focus" member who has been informed he/she is the subject of the investigation. The second sentence of Section 8.9, states that "in all other circumstances," the member refusing to answer may be charged with insubordination, ‘The intent is that the witness 1 While redundancy may on occasion be an interpretive tool, provisions in Article 8 are repeatedly stated for the sake of clarity. For example, Section 8.3(B) is reiterated in Section 8.7.‘member does not have the same contractual rights as the focus member, but a witness member must be ‘warned prior to issuing charges for refusal to answer or participate in an investigation. Section 8.9 must be read in accord with the other provisions of Article 8. In Section 8.3 (A), the parties have agreed: “When a member is to be interviewed as a witness in an investigation of any other member, the member to be interviewed shall be fairly apprised prior to the beginning of questioning of the circumstances giving rise to the interview” (bold print added). Nowhere in that Ianguage is there any indication that a witness member may refuse to co-operate, that the appearance at the interview is totally voluntary, or that the interview is merely being "requested." In fact, the words, "is to be interviewed," denote a mandatory appearance. Only when the witness or the “investigator has reason to believe the witness has become a focus of the investigation” or may be the focus of another investigation, do additional “rights” come into pay, including protections against self-incrimination (Section 8.3(B) and Section 8.3 (C). The Union argument about a potential dereliction of duty charge against a witness member is not well-founded because the testimony of the ‘witness member is to be Garritized pursuant to the Notification issued by the City (See Union Exhibits 3 and 7, See also Garrity v. New Jersey, 385 U.S, 493, 87 S.Ct. 616, 17 LEd2d 562) ). Moreover, the contract language provides additional protections in the event the witness member becomes the focus of a different charge. Section 8.10 specifically permits "explaining to a member that potential corrective and/or discipline action could result if the member continues to refuse to answer questions or participate in an investigation...." The parties have agreed that such explanation is not to be construed as "coercion." Terms of the Agreement between the parties reasonably imply the City may compel witness member testimony. Since members of the public cannot be ordered to testify in a misdemeanor investigation, the Union contends a Police Officer should not be required to do so. Nonetheless, a member of the public may, as an employee, be required to participate in an investigation conducted by an employer. Whether public or private, an employer may retain authority to discipline witness employees who engage in insubordination by refusing to cooperate in an investigation. In the absence of clear evidence of a statutory infringement, Article 8 contemplates compulsory witness testimony. ‘Nothing in Article 8 of the Agreement expressly prohibits the City from disciplining a witness employee who refuses to participate in an investigation. A thorough investigation including interviews with witnesses is an expected just cause precursor to the filing of charges. Yet, just as the right of the City to require witness testimony may be inferred or reasonably implied from a reading of Article 8, 80, too, Article 8. precludes mandating testimony in a criminal investigation from a member who has interviewed, attended, and/or reviewed the internal investigation of that focus member. Defining a Witness Member Evidenced by the testimony elicited at the hearing on this matter, the underlying issue now in dispute is defining who qualifies or may be compelled to appear as a witness in a criminal investigation conducted by the City. In question is whether a member who has interviewed a focus member under Garrity, reviewed such a report, or attended a Garrity hearing as a Lodge representative may subsequently be required to respond to questions as a witness in a criminal investigation conducted by the City pertaining to the focus member internally investigated. ‘Although the Agreement does not specifically address the pending question, the Arbitrator is tasked with resolving this dispute concerning City “application of terms of this Contract" (See Section 12.1). In Article 8 of the Agreement addressing internal investigation, Section 8.1 defines an "investigator" and a "Lodge Representative." These individuals have specific functions in the investigatory process but they are not deemed "witnesses." In an internal investigation the role of the "investigator" or 10Lodge representative is not that of a witness. Throughout Article 8, references to a "member" either focus" or "witness" necessarily excludes the "investigator," Lodge representative," or reviewing Supervisor. A change in the investigatory entity does not transform these members into "witnesses." Article 8.1, provides that an investigation conducted by the Office of the Public Safety incorporates the same processes and protections as those afforded in an internal investigation. Accordingly, the role of the interviewer in an Internal Affairs Bureau investigation can not change into that of a witness in a subsequent criminal examination. Nor can a representative during an internal affairs investigation thereafier assume the very different responsibilities of a witness in a criminal investigation of the same focus member. ‘Negotiated language must be reviewed taking into account applicable law (See Article 2.3(A). Unarguably, information secured from a focus member through an internal interview is protected from use in a subsequent criminal proceeding. Throughout the arbitration hearing and in its Post Hearing Brief, the City has maintained that Supervisors can tell the difference between what they have been told in an internal investigation and what they have personally observed in the field. Concern of the Union, however, is that the distinction between observation and constitutionally protected information will not always be discerned. Such concern is not misplaced. A perusal of the January 14, 2021 e-mail issued to Sergeants Weaver and Castro clearly and concisely seeks information on the interviews they conducted and not on what the Sergeants personally observed. Subject of the e-mail is: "Officer Dye use of force report for May 30. 2020" (FOP Exhibit 4), Rather than seeking information about what they had seen, the e-mail requests a report about what they had been told. Specifically naming the Officers about whom information is sought, the e-mail requests "Reports" on those Officers and not the personal observations of the Sergeants, as argued at arbitration, Indeed, nowhere in either the initial January 21, 2021 e-mail or in the March 25, 2021 Interview Notification is there any reference to protecting prior Garritized statements. The Interview Notification indicates that the investigation is being conducted by the Special Investigator in conjunction with the Special Prosecutor and that the member being interviewed will be given Garrity protection, But, the Notification issued to members who had conducted or attended prior interviews does not include any assurance against a potential "threat that a prosecutor will eventually see the contents of a [previously] compelled statement" (State v. Jackson, 125 Ohio St. 3d. 218 (2010), 224). Nor does the Notification provide any protections against compelling divulgence of Garritized information. The City argues that the current arbitration proceeding is premature. If the City investigator seeks protected information rather than mere observations, then, the City contends the FOP may file a grievance. One problem with that argument is that the member being interviewed is not the “aggrieved” employee. Indeed, the aggrieved may remain unaware that his/her Constitutional and contractual rights may have been compromised. Just as the Fifth Amendment right against self- incrimination inures to the individual, as argued by the City, so too, do the individual contractual protections negotiated by the Union for its bargaining unit members. Moreover, pursuant to the terms negotiated by the parties in Article 8, the grievance procedure inadequately protects the focus member from improper use of Garritized information in a subsequent criminal investigation. The member being interviewed does not have the right to refuse to answer or "unduly disrupt{]" the investigation. Only "at the end of the interview,” may the Lodge Representative or the member "have the right to object to inappropriate lines of questioning and/or raise any contractual violation" (See Article 8.2(C)). At that point in a criminal investigation such as pursued by the City, protections extended to a focus member by the labor contract and by the United States Constitution have been irreparably damaged, Having the benefit of privileged information, the City may use that information to further its criminal iinvestigation (See Jackson, 222). The Special Prosecutor may have been provided not only with a “version of events," but also with additional "invaluable information” including identification of witnesses, the very information the City has stated it is now seeking as well as the same information at issue in Jackson (Jackson, 223). ? Implementation of the Agreement requires compliance with applicable laws (See Section 2.3 (A)). Consistent with judicial holdings, a proper application of contractual terms must preclude the sharing of information provided by a focus member during an internal investigation. The only effective means of ensuring such a preclusion is to remove the investigator(s) and the attendant Lodge representative from assuming the role of witnesses. ‘As previously noted, the internal investigator and Lodge representative have contractually defined duties as well as constitutionally imposed obligations which, if violated, may give rise to personal liability. Contractually, the investigator is defined as the individual "conducting the investigation" and the Lodge representative is in attendance with the right to make objections upon conclusion of the hearing. In an internal investigation, neither the investigator nor the Lodge representative is "a member {] to be interviewed as a witness” (See Section 8.3). Nor should they be deemed to be so in a subsequent criminal investigation of that focus member. An investigation to be conducted by the Office of the Public Safety Director incorporates the same contractual provisions "applicable in an Internal Affairs Bureau investigation." Accordingly, neither the administrative investigator nor Lodge Representative in attendance at such an investigation should bbe deemed "members to be interviewed as a witness" in a subsequent criminal investigation (Section 8.1 and Section 8.3). Following an administrative interview of a focus member, the internal investigator and the Lodge representative present at that interview cannot be compelled to engage in a divergent role as a witness in a criminal investigation, ‘Applying the Agreement between the parties so as to permit an internal investigator who has already interviewed a focus witness to then be interviewed by a Special Prosecutor as a witness would be meaningless. Any privileged information derived through an internal investigation of a focus member cannot be used in a subsequent criminal investigation. Moreover, divulging such information exposes the internal investigator to liability, an outcome which is neither reasonable nor equitable pursuant to principles of contract interpretation. Finally, the City "runs the risk" of a breach of promise (Jackson 224), Both parties elicited expert testimony and submitted judicial cases on the Constitutional protections now in issue. The law is well-established and the experts do not dispute that derivative use of compelled testimony is prohibited in a subsequent criminal prosecution. Now in contention is contract language and not a legal definition of derivative use. Terms of the contract implicitly remove an internal investigator or Lodge Representative as a "member to be interviewed as a witness" in a subsequent criminal investigation of a focus member. This contractual analysis is in accord with Jackson which precludes "testimony from a witness to the [Garritized] statement" (italics added, Jackson at 222). Having served in a contractually defined function, an internal investigator, Lodge representative, or reviewing supervisor privy to the Garrity interview cannot transform into an altemate role and become a witness member in a subsequent criminal investigation. Pursuant to Section 8.1, a criminal investigation conducted by the governed by the same contractual terms and processes as an intemal administrative investigation Throughout the course ofthe arbitration hearing, the City argued it was merely seeking observed information, such as the identification of Officers. Yet, Sergeant Castro testified it was impossible for her to identify Officers given the riot gear members were using during the protestsJriots. Accordingly, any identification would have been a consequence of her intemal investigation rather than her observations, 12Conclusions ‘The Agreement between the parties identifies "witness member" and "focus member." It also defines "investigator" and "Lodge representative." A witness member may be directed or ordered to provide testimony in any investigation of a focus member including one conducted by the Office of Public Safety, Refusal of the witness member to comply may properly give rise to a charge of insubordination, An internal investigator or a Lodge representative in attendance at a Garritized interview with a focus member, however, is not a "witness member” and may not thereafter be directed "to be interviewed as a witness" in a subsequent criminal investigation conducted by the City. Nor should any member having reviewed an internal affairs investigation be ordered to serve as a witness in a subsequent criminal investigation involving the same focus member and the same event or occurrence. Reasoning by which an internal interviewer and a Union representative in attendance at such an interview are excluded as witnesses in any subsequent criminal investigation conducted by the City derives from the negotiated terms of the Agreement as well as consideration of applicable law. Article 8.1 identifies and defines the role of members in investigations whether internal investigations conducted by the Internal Affairs Bureau or criminal investigations conducted by the Office of Public Safety. Those definitions and roles are consistent and do not change depending upon the entity doing the investigation. An internal investigator and a Lodge representative are not "member witnesses" in an administrative interview and they should not be so considered in any subsequent criminal investigation of the same focus member. Remedy ‘The City may compel a witness member to testify in criminal investigations conducted by the Office of Public Safety; however, the City is directed to cease and desist from compelling a member investigator, including a reviewing Supervisor, or a Lodge representative in an internal investigation to appear as a witness member in a subsequent criminal investigation of the same focus member. Additionally, the City is directed to expunge from the criminal investigation of a focus member any interview conducted with an investigator, Lodge Representative, or reviewing Supervisor who served in the internal investigation of such focus member. Jurisdiction is retained by the Arbitrator for sixty (60) days solely to ensure that additional remedial action or a clarification of the same is not required. Award ‘The grievance is denied in part and sustained in part consistent with the above discussion and remedy. Margaret Nancy Johnson Arbitrator Dated and made effective in Columbus, Franklin County, Ohio, this 17th day of January, 2022 13