STATE OF NEW YORK

CITY OF ITHACA
______________________________________________________
The Matter of the Disciplinary Arbitration Between the
CITY OF ITHACA, NEW YORK and the
ITHACA POLICE DEPARTMENT,
Employer,
OPINION
and
AWARD

– Against –

THE CITY OF ITHACA POLICE BENEVOLENT

ASSOCIATION, INC., and OFFICER SARAH CREWS,

Grievants.
___________________________________________________

BEFORE: Arbitrator Timothy S. Taylor, Esq.

APPEARANCES: The City of Ithaca, New York and the Ithaca Police Department
By: Roemer Wallens Gold & Mineaux LLP
Earl T. Redding, Esq.

The City of Ithaca Police Benevolent Association, Inc., and Officer Sarah
Crews
By: The Law Offices of John K. Grant, P.C.
John K. Grant, Esq.

PRELIMINARY STATEMENT

The Arbitrator was appointed under the procedures of the parties’ collective bargaining

agreement to hear and render a binding determination in the above-entitled arbitration between the

City of Ithaca, New York, the Ithaca Police Department (“City” “IPD” or “Department”) and the

City of Ithaca Police Benevolent Association, Inc., (“IPBA” or “Union”) and Officer Sarah Crews

(“Crews” or “Grievant”). Under Article XVI of the 2008-2011 Collective Bargaining Agreement

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between the City and Union (“the Agreement” or “CBA”). (J.11). The City issued a Notice of

Discipline (“NOD”) to Grievant on January 10, 2019. (J.2). The NOD seeks to suspend Crews for

thirty (30) calendar days without pay. On January 10, 2019, Grievant filed a disciplinary grievance

and the grievance was moved to arbitration under the CBA. (J. 5).

Hearings were held at Police Headquarters in Ithaca, New York on November 8, 2021,

November 9, 2021, March 7, 2022, March 8, 2022, March 22, 2022, March 23, 2022, April 26,

2022, May 6, 2022, June 9, 2022, July 7, 2022, August 22, 2022, August 23, 2022, November 11,

2022, November 18, 2022 and December 1, 2022. The parties had a full and fair opportunity to

present testimony, submit evidence, call and cross-examine witnesses, and argue to support their

respective positions.

The parties’ closing briefs and supporting materials were received on January 23, 2023. On

January 23, 2023, the City moved to consolidate the January 10, 2019 NOD with a pending

September 25, 2019, NOD. The Union in an answer dated February 10, 2023, opposed the City’s

motion. The City replied on February 14, 2023, and argument was heard on March 20, 2023. The

motion was denied and as of that date, the record was closed.

DISCIPLINARY CHARGES

The NOD filed by the City against the Grievant states:

To: Officer Sarah Crews

This is to notify you, as Chief of Police of the City of Ithaca, I have

determined that there is such probable cause for the following charges to be
brought against you:

Section I: Charges in Detail

As fully set forth below in the supporting specifications, on April 22, June 27,

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The exhibits are referenced as J. for Joint, C. for City, R. _. For Respondent and U. for Union. The
transcript is referenced as T._.

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July 31, August 24, and October 11, 2018, you violated the following Ithaca
Police Department Rules and Regulations:

1. Section 1.1, "Obedience to laws, Ordinances, and Rules." Employees

shall obey all laws of the United States, State of New York, local
ordinances, or laws and ordinances of any jurisdiction where they may
be present. A conviction for violation of any of the above shall
constitute a violation of this section. Employees shall obey all the
Rules and Regulations of this Department, and rules, regulations, and
policies for employees of the City of Ithaca.

2. Section 1.5, "Insubordination." Employees shall not be insubordinate.

3. Section 2.12, "Courtesy." Employees shall perform their duties in an

efficient, courteous, and orderly manner, using patience and good
judgment at all times. They shall not use harsh, profane, or insolent
language. They shall be courteous and civil in their dealing with the
public and other employees.

4. Section 2.14, "Assistance to Citizens." Employees shall, in accordance

with policies and procedures of the Department, render all possible
service to any citizen seeking information or assistance.

5. Section 4.1, "Conduct." Officers shall so conduct themselves in both their

private and professional lives as to avoid bringing discredit upon the
Department.

Section II: Supporting Specifications

1. That, based upon information and belief, on April 22, 2018, you violated
Section 1.1, "Obedience to laws, Ordinances, and Rules," of the Ithaca
Police Department Rules and Regulations, to wit;

At approximately 1:20 you were dispatched to a party at 134 Linden

Avenue to assist with an intoxicated female and during such call you
encountered an individual hereafter referred to as A.A. Approximately a
half-hour later, after leaving the party at 134 Linden Avenue, you forcibly
arrested A.A. for possession of alcohol under the age of twenty-one in
violation of section 65-c of the Alcoholic Beverage Control Law near the
intersection of East Seneca and Eddy Streets. Prior to using force to arrest
A.A., you never informed her that she was under arrest.

However, sub-section 65-c(3) provides that an under twenty-one person

in violation of section 65-c "may be summoned before and examined by
a court having jurisdiction of that charge" and that nothing in section
65-c shall be "construed to authorize" a police officer "to arrest a person

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 who unlawfully possesses an alcoholic beverage with intent to
consume." Thus, your arrest of A.A violated the law as set forth in
section 65-c of the Alcoholic Beverage Control Law.

Per Section 1.1, "Obedience to Laws; Ordinances, and Rules," of the

Ithaca Police Department Rules and Regulations, "Employees shall obey
all laws of the United States, State of New York, local ordinances, or laws
and ordinances of any jurisdiction where they may be present." By
violating section 65-c when you arrested A.A., you failed to obey the laws
of the State of New York while performing your duties. Such failure to
follow the law resulted in an unnecessary forcible arrest. As such, you
have violated section 1.1 of the Ithaca Police Department Rules and
Regulations.

2. That, based upon information and belief, on April 22, 2018, you
violated Section 2.12, "Courtesy," of the Ithaca Police Department
Rules and Regulations, to wit;

In the early morning hours, you encountered and arrested A.A. as is more
fully set forth in specification "1." During your interactions with A.A.
prior to her arrest, you stated to her that "If you don't want to do it the easy
way, you'll do it my way." After you arrested A.A., you told her she was
"acting like a little animal." And, while A.A. was already under arrest in
the back of a patrol car, you told her, "Shut your mouth little girl, I've had
enough of your shit tonight. You're not in control."

Per section 2.12, "Courtesy," of the Ithaca Police Department Rules and
Regulations:

Employees shall perform their duties in an efficient,

courteous, and orderly manner, using patience and good
judgment at all times. They shall not use harsh, profane,
or insolent language. They shall be courteous and civil in
their dealing with the public and other employees.

By making the above described comments, you used "harsh" and

"profane" .language that was not only discourteous in your dealing with
A.A., but also demeaning towards her. As such, you have violated Section
2.12 of the Ithaca Police Department Rules and Regulations.

3. That, based upon information and belief, on April 22, 2018, you violated
Section 4.1, "Conduct," of the Ithaca Police Department Rules and
Regulations, to wit;

Per section 4.1, "Conduct," of the Ithaca Police Department Rules and
Regulations, "Officers shall so conduct themselves in both their private

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 and professional lives as to avoid bringing discredit upon the Department."
As a result of the conduct detailed in specifications "1" and "2" above, you
effected an unnecessary forcible arrest of A.A. and, after doing so, used
demeaning and profane language towards A.A. This resulted in A.A.'s
filing of a notice of claim against the City. Such conduct in this instance
has brought discredit upon the Department in violation of section 4.1 of
the Ithaca Police Department Rules and Regulations.

4. That, based upon information and belief, on June 27, 2018 you
violated Section 2.12, "Courtesy," of the Ithaca Police Department Rules
and Regulations, to wit;
At approximately 23:30, on June 26, 2018, the New York State Police
indicated it had arrested a female individual for whom IPD had an arrest
warrant. Officer George DuPay was assigned to coordinate the transfer of the
female detainee into IPD custody.

At approximately 00:59, on June 27, 2018, you were asked by Lieutenant

John Joly, to come in to the station by Mobile Data Terminal to perform a
search of the female prisoner on route to the station and to perform jailer
duties for the prisoner. When you arrived at the station, you walked up to
officer DuPay and told him, "You can go fuck yourself." Upon information
and belief, you were aware that it was DuPay who had retrieved the female
detainee from the New York State Police when you made this comment.

You then met with Lieutenant Joly and stated something to the effect of "this
is bullshit and you know it." You then said that if Lieutenant Joly insisted
you perform the search and jailer duties, you were requesting personal time
or sick time to go home. Lieutenant Joly granted your request for personal
time leave and you later indicated that you wanted to use sick time because
you were "too upset" to remain at work. Lieutenant Joly advised you that
he had already approved your personal time, and that you could ask the
Chief if she wanted it changed. While standing in the Sergeant's office, you
again said to Lieutenant Joly something to the effect of "this is bullshit."
Lieutenant Joly advised you that you could leave the station, as your
personal time was approved. You remained for a few more minutes at
which point Lieutenant Joly instructed you to leave, which you initially
refused to do until he informed you that you were acting insubordinate.

Per section 2.12, "Courtesy," of the Ithaca Police Department Rules and
Regulations:

Employees shall perform their duties in an efficient,

courteous, and orderly manner, using patience and good
judgment at all times. They shall not use harsh, profane, or
insolent language. They shall be courteous and civil in their
dealing with the public and other employees.

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 By twice describing direction from Lieutenant Joly as "bullshit" and telling
Officer DuPay to "go fuck yourself," you not only used "harsh, profane, or
insolent language," but also failed to perform her duties in an "efficient,
courteous, and orderly manner." As such, you violated section 2.12 of the
Rules and Regulations requiring courtesy with other IPD employees in the
performance of her duties.

5. That, based upon information and belief, on June 27, 2018 you violated
Section 1.5, "Insubordination," of the Ithaca Police Department Rules and
Regulations, to wit;

The Ithaca Police Department Rules and Regulations define

"insubordination" as including, "insolent or abusive language or action toward
any commanding officer." Based upon the facts fully set forth in specification
"4," you were insubordinate by twice describing direction from your
commanding officer John Joly as "bullshit" and otherwise acting in an insolent
and abusive manner towards your commanding officer and the direction
received therefrom.

6. That, based upon information and belief, on July 31, 2018 you
violated. Section 2.12,"Courtesy," of the Ithaca Police Department Rules
and Regulations, to wit;

In the late evening of July 31, 2018, you issued Timothy Pettaway a parking
ticket for being partially outside of a legal parking space on Osmun Place near
the intersection with Stewart Avenue. Shortly thereafter, Mr. Pettaway came
to the Department to complain that you were rude and discourteous to him
during that interaction and that you had similarly been rude to him on two
prior occasions, during all of which he believed you exhibited harassing
behavior.

Mr. Pettaway's complaint is substantiated by the body worn camera footage,

which shows you were unnecessarily confrontational and rude. You
repeatedly scolded him, interrupted him, and told him to "start obeying the
law, much easier."

Per section 2.12, "Courtesy," of the Ithaca Police Department Rules and
Regulations:

Employees shall perform their duties in an efficient, courteous, and

orderly manner, using patience and good judgment at all times. They
shall not use, harsh, profane, or insolent language. They shall be courteous
and civil in their dealing with the public and other employees.

By acting in the above-described manner with Mr. Pettaway, you failed to

"be courteous and civil" in your dealing with the public thereby violating
section 2.12 of the Rules and Regulations.

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7. That, based upon information and belief, on July 31, 2018 you violated
4.1, "Conduct," of the Ithaca Police Department Rules and Regulations, to
wit;

Per section 4.1, "Conduct," of the Ithaca Police Department Rules and
Regulations, "Officers shall so conduct themselves in both their private and
professional lives as to avoid bringing discredit upon the Department." As a
result of the conduct detailed in specification "6" above, Mr. Pettaway
complained to the Department and indicated that he felt harassed and
threatened. Your discourteous and rude conduct, therefore, brought discredit
upon the Department thereby violating section 4.1.

8. That, based upon information and belief, on August 24, 2018 you
violated section 2.12, "Courtesy," of the Ithaca Police Department Rules
and Regulations, to wit;

At approximately 22:40 you pulled over John Bailey on Linden Avenue, a

one way street, after he had passed you when your car sat idle in front of him.
A few days thereafter, Mr. Bailey emailed Chief of Police Pete Tyler and
complained about your tone, demeanor, and behavior during the stop. Mr.
Bailey indicated that you "escalated a simple traffic stop with me, for no
reason" and that he felt threatened by your behavior.

Review of the body worn camera footage from the incident substantiates Mr.
Bailey's complaint. After pulling Mr. Bailey over, you engaged in an
unnecessarily confrontational and rude exchange with him, indicating "I
suggest you learn to play by the rules around here." At the conclusion of the
interaction, for which no ticket was issued, you even stated, "John Bailey,
you're on my radar."
Per section 2.12, "Courtesy," of the Ithaca Police Department Rules and
Regulations:

Employees shall perform their duties in an efficient,

courteous, and orderly manner, using patience and good
judgment at all times. They shall not use harsh, profane,
or insolent language. They shall be courteous and civil in
their dealing with the public and other employees.

By acting in the above-described manner with Mr. Bailey, you failed to

"be courteous and civil" in your dealing with the public thereby
violating section 2.12 of the Rules and Regulations.

9. That, based upon information and belief, on August 24, 2018 you violated 4.1,
"Conduct," of the Ithaca Police Department Rules and Regulations, to wit;

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 Per section 4.1, "Conduct," of the Ithaca Police Department Rules and
Regulations, "Officers shall so conduct themselves in both their private
and professional lives as to avoid bringing discredit upon the Department."
Based upon your conduct detailed in specification "8" above, Mr.
Pettaway wrote to the Chief:

I do not believe the treatment and threat I received from this

IPD officer are in keeping with the Mission Statement of the
IPD which states the mission of the department "is to
enhance the quality of life in our community by working
cooperatively with the public..." What I experienced was
not cooperative, but was belligerent and threatening. I know
this behavior is not in keeping with your leadership and
IPD's normal interactions with the public....

Accordingly, your conduct, both objectively standing on its own and as

evidenced by Mr. Bailey's assessment thereof, has brought discredit upon
the Department and violated Section 4.1 of the Rules and Regulations.

10. That, based upon information and belief, on October 11, 2018, you
violated section 2.14, "Assistance to Citizens," of the Ithaca Police
Department Rules and Regulations, to wit;

At approximately 00:25, you were dispatched to a welfare check at 114

Summit Avenue. The call for a welfare check was made by an individual
hereafter referred to as Mike Taub, who indicated to dispatch that his son
was depressed and had possibly taken a dangerous combination of
medication and alcohol. The subject, hereafter referred to as J.T., met you
outside of his apartment and told you he had taken 3-4 Klonopin, which
is a controlled substance that has an overdose risk.

Instead of calling for EMS, you drove J.T. to Cayuga Medical Center
yourself. On route, you informed dispatch that J.T. had taken several
Klonopin. Dispatch informed you that Mike Taub, the father who initiated
the welfare check, would like a phone call updating him on the situation.
You indicated that you would not call the father because J.T. was over 18
and that you wouldn't relay any of his medical information for that reason.
Dispatch replied that Mike Taub nonetheless wanted an update and you
refused, indicating you would be "tied up."

Section 2.14 of the Ithaca Police Department Rules and Regulations,

"Assistance to Citizens," provides that "employees shall, in accordance
with policies and procedures of the Department, render all possible
service to any citizen seeking information or assistance." In this
instance, Mike Taub requested "information and assistance" from you by
asking for a telephone call to update him on the welfare of his son

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 following his initiation of a welfare check. Even if you believed that you
couldn't share details of J.T.'s medical information with his father, there
was no reason you could not call Mike Taub to inform him that his son
was at the hospital and in good condition. By refusing to make such a call,
you violated the requirement in section 2.14 that officers "render all
possible service to any citizen seeking information or assistance.''

11. That, based upon information and belief, on October 11, 2018, you
violated section 2.12, "Courtesy," of the Ithaca Police Department Rules
and Regulations, to wit;

At approximately 00:25, as detailed in specification "10," you responded to

a welfare check for an individual named J.T. During such call, you responded
to dispatch that J.T. was "reporting 3- 4 Klonopin" but never indicated the
call presented a possible overdose. You expressed anger with dispatch that
there would be a wait at the hospital to treat J.T., to which dispatch
responded it was unaware you had an overdose patient. You angrily
replied, "that's what 3-4 Klonopin means!"

An interview of Tompkins County 911 Dispatch Supervisor David B.

Cotterrill (sic) shows that dispatch perceived your conduct over the radio
with respect to that call, including but not limited to the above-described
statement, to be inappropriate radio protocol due to your sarcasm,
condescending tones, and arguments with dispatch personnel. Mr. Cotterrill
(sic) further stated that, unfortunately, your inappropriate radio comments
and behavior with dispatch of that evening are not an isolated incident.

Per section 2.12, "Courtesy," of the Ithaca Police Department Rules and
Regulations:

Employees shall perform their duties in an efficient,

courteous, and orderly manner, using patience and good
judgment at all times. They shall not use harsh, profane, or
insolent language. They shall be courteous and civil in their
dealing with the public and other employees.

Your radio interactions with Tompkins County 911 Dispatch, as detailed

above and evidenced in the recording thereof, were not "courteous and
civil" and, therefore, violated section 2.12.

Section Ill: Penalty Sought

These charges and specifications represent an unfortunate and disturbing pattern

of complaints - the majority of which have come from outside the Department -
of unnecessarily rude, discourteous, and unprofessional behavior. As you are
aware, issues regarding your professionalism and courtesy arose in 2016, for
which you were issued notices of discipline. Then, earlier this year, a complaint
was received from the Fire Department that regarded your unprofessional

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 treatment of an intoxicated member of a public, which resulted in the Department
issuing you a counseling memorandum. Unfortunately, you have failed to correct
course and your interactions with the public and your colleagues detailed in these
charges remain well below the standards of respect and professionalism expected
in this Department. Accordingly, the above-described charges and specifications,
in the aggregate, warrant the following penalty: Thirty calendar days of unpaid
suspension.
RELEVANT CONTRACTUAL PROVISIONS
ARTICLE XIII
EMPLOYEE RIGHTS IN DISCIPLINARY MATTERS

Section A. – Preamble

1. No permanently appointed employee shall be disciplined, discharged,

reduced in rank or compensation without just cause as a penalty for misconduct
or incompetence.

2. It is expressly understood between the parties the provisions of this

Article do not apply to police officers who have not yet satisfactorily completed
the Civil Service probationary period. This article does not apply to voluntary or
involuntary disability retirements.

Section B. - Definitions

1. Discipline includes any written reprimand or written reference to

an oral reprimand, reduction in compensation, demotion in salary grade,
imposition of a fine or suspension, which the Department seeks to
impose on a unit member as a penalty for misconduct or incompetence.

2. Discharge means termination from service as an employee

of the Department, which the Department seeks to impose as a penalty
for misconduct or incompetence.

3. Department means the Ithaca Police Department.

4. Chief refers to the Chief of Police.

5. Association means the Ithaca Police Benevolent Association.

6. Representative means any person designated by the Association or the

employee to act on behalf of the employee and/or Association.

7. City shall mean the City of lthaca.

8. Employee shall mean any employee of the Department represented by

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the Association.

9. Days mean regular business days of the City, unless otherwise noted.

10. Service means delivery of written Notice by first class and certified mail,
return receipt requested or by hand delivery of Notice.

11. Counseling Memorandum means a written communication to an

employee intended to call attention to breaches in policy and/or procedure and
for the purpose of instruction to employee in more appropriate conduct or
correcting the employee's behavior. Counseling memorandum are not intended
to draw conclusions of fact or to punish.

Section C. - Rights To Representation

1. Whenever an employee who is the potential subject of a disciplinary

action is summoned to a meeting with the Chief or the City for matters of
discipline or discharge, the employee shall be informed of the issue to be
discussed at the meeting and will be made aware that the employee has the right
to representation by a person designated by the Association or by a person
selected by the employee. An employee may be represented by a person other
than a person designated by the Association only if the employee, in a written
communication to the Chief and the Association President, expressly waives the
right to representation by the Association and any of its agents or designees. The
Association shall provide to the Chief of Police a list of those persons who are
authorized by the Association to provide representation to employees in
disciplinary matters. It is incumbent upon the Association to provide prompt
written notice to the Chief of Police if and when there are any changes to the
authorized representative list.

2. The Chief shall provide the employee up to twenty-four (24) hours to

obtain representation for the meeting. For any disciplinary action which
requires the employee's attendance, the Chief of Police or the Mayor may
extend the time limits to permit the employee to appear during the employee's
scheduled duty time. These time periods shall not apply to investigatory
suspensions.

Section D. - Investigatory Suspensions

1. In the event that the Chief learns of an allegation of employee

misconduct which generates concern for the safety and welfare of other
employees or the public, the Chief may suspend the employee against whom the
allegations are made, with pay, up to thirty days in order to further investigate
the allegation.

2. If the allegation proves unfounded, all records of the allegation shall

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be removed from the employee's personnel file and retained in a confidential
file in the Chief's office for use only in the event that the City or the
employee is sued regarding the employee, the event, or the Department's
investigatory practices. The employee shall immediately return to active
duty with no loss of pay, or other benefits.

3. If, after further investigation, the Chief believes the allegation to be

substantiated, disciplinary action may be taken pursuant to this Article XIII.

4. When an employee is the subject of such an investigation, the

Association President shall be advised, prior to any investigatory
questioning of the subject employee, that the employee is the subject of an
investigation.

Section E. - Limitation on Actions

No disciplinary action against an employee shall be commenced by the City
more than eighteen (18) months after the Chief learns of the occurrence of the
alleged acts for which discipline is being considered. Such time limitation shall
not apply where the act(s) would, if proven in a court of appropriate jurisdiction,
constitute a criminal offense.
Section F. -Procedures for Notice of Discipline
1. Where the Chief has probable cause to believe that an employee is
guilty of misconduct or incompetency, the Chief may initiate disciplinary
action. If disciplinary action is taken, it shall be commenced by serving upon
the employee a Notice of Discipline (See Appendix C). This Notice shall state
the nature of the charges, the specifications and state the penalty being sought.
Within twenty-four (24) hours of service of the Notice of Discipline upon the
employee, the President of the Association shall be provided with a copy of the
Notice.
2. In addition to the Notice of Discipline, the employee will also be served
with a Waiver of Arbitration Hearing Form (See Appendix D) and Notice of
Demand for Arbitration forms (See Appendix E).
3. Within ten (10) days of receipt of the Notice of Discipline, the
employee shall serve upon the Chief either a Waiver of Arbitration Hearing
Form or Notice of Demand for Arbitration form.
4. If the employee fails to provide to the Chief with either the Notice of
Demand for Arbitration or Waiver of Arbitration Hearing Form within the ten
(10) days, the charges shall be deemed sustained and the penalty being sought
may immediately be imposed.

5. Should the employee serve the Chief with Notice of Demand for
Arbitration, and if the penalty being sought is discharge, the employee will be
suspended with pay and benefits, as provided in the subsection below entitled

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"Salary Protection During the Disciplinary Process".

Section G. - Discovery

1. The parties agree that disclosure of certain information may assist the
parties in the search for the truth and in reaching resolution of a dispute
involving discipline or discharge. Therefore, the parties agree to provide to the
requesting party, within ten days after a written request, the following
information:

a. Names of any known witnesses with knowledge of facts

relevant to the charges or specifications;
b. Any documents, lab tests, scientific tests, photographs,
video tapes, drawings, charts etc... which relate to the
charges or specification;

c. Copies of sworn statements made by witnesses;

d. The identification of any witnesses with first-hand

information which would tend to mitigate or intensify the
penalty.
2. Discovery requests shall be considered ongoing and any additional
information responsive to the original request discovered at any time during
the process should be made available to the requesting party.

3. In no case shall either side be entitled to discovery of the work product

of any attorney or labor consultant, retained by either party.

Section H. - Procedures for Arbitration

1. Selecting the Hearing Officer/Arbitrator

a. Within five (5) business days of receipt of an employee's demand for

an arbitration hearing, the City and the Association will confer in
person or by telephone to determine which of the arbitrators from the
permanent list of arbitrators is next on the rotation and available to
conduct a hearing within the time limits provided in Section B. below.

b. The following individuals, providing they agree to serve, shall be on

the list of permanent arbitrators: James Markowitz, Thomas Maroney,
Mona Miller, Stuart Pohl and John Watson.

c. This list of permanent arbitrators expires with the current contract and
does not carry over into any successor agreement. In the event that the
parties require the assistance of an arbitrator during any period between
contracts, the City and the Union President shall mutually agree on one of
the arbitrators on the above list.

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 d. An arbitrator shall be appointed to decide a disciplinary matter in
rotation order, alphabetically by last name. Not later than five (5)
business days after the service of the Demand for Arbitration, the City
and the Union shall jointly write to the next arbitrator in order of rotation
and request the arbitrator furnish the parties with a list of not fewer than
five (5) days within the next sixty (60) calendar days or forty-five
business days that are available to the arbitrator to hear the grievance.

e. In the event that the selected arbitrator is not able to provide five
(5) hearing days within the next forty-five (45) business days, the
next arbitrator on the list shall be contacted as provided above. This
process
shall continue in rotation order until reaching an arbitrator who is able
to provide five (5) days as available for hearing as indicated above.
Notwithstanding the foregoing, the parties may by mutual agreement
extend the time period during which an arbitrator is required to hear
the disciplinary matter.

f. Upon receipt of the hearing dates from the arbitrator, the parties shall
confer for purposes of selecting one or more of the five days. In the event
the parties are not able to agree on a hearing day (days), each party shall
notify the arbitrator of its availability on at least three (3) of the five (5)
hearing days, which notice shall be provided to the arbitrator within five
(5) business days of receipt of the hearing days listing from the
arbitrator. In no event shall a party not be available on less than three
days. Upon receipt of the available dates from the parties, the arbitrator
shall schedule a hearing day or days by notice to each party. In the event
a party does not provide the available days information as provided
above, the arbitrator shall schedule hearing days based on the
information provided by the other party.

g. Either party may cause the removal of an arbitrator from the panel at
any time provided the arbitrator does not have a matter pending
under this Contract before the arbitrator at the time of the removal.
The parties shall meet for purposes of selecting and appointment
of replacement panel members, if necessary, at least once every six
months.

2. Timeliness of Hearing

The hearing must be conducted within forty-five (45) business days of

the Initial Notice of Discipline.

3. Burden of Proof

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 The Department shall bear the burden of proving that the employee is
guilty of the charges alleged. In non-discharge cases, the Department must
establish the employee's guilt by a preponderance of the evidence. In
discharge cases, the Department must establish the employee's guilt by
clear and convincing evidence.

4. Requirement of Finding of Fact

In reaching a decision after a disciplinary hearing, the arbitrator must

make a specific finding as to each separate allegation or specification in
the Notice of Discipline. The decision must state whether the City met its
burden of proof on each separate specification of the charges.

5. Transcript

The parties, by mutual agreement, may provide for a stenographic record.

In such case the transcript shall serve as the official transcript of the
Hearing. The costs shall be borne equally between the City and
Association.

6. The starting time for the hearings will be mutually agreed to between
the Association representative and the City representative.

7. If post hearing briefs are required by the arbitrator or requested by

the City or Association said briefs are to be received by the arbitrator
within twenty-five (25) calendar days of the close of the oral arguments.

8. The arbitrator shall have thirty (30) calendar days after closing the record
and receipt of the briefs, if any, to render a decision which shall be final
and binding upon all parties to the arbitration. Copies of the Decision and
Award shall be mailed to the parties' representatives.

9. The arbitrator and the parties to the arbitration shall be bound by the
Voluntary Rules and Procedures of the American Arbitration Association,
to the extent that said rules are not inconsistent with any of the terms of this
agreement.

10. The employee may, at the employee's expense have the employee's own
representative present at the arbitration hearing. The Association must be
present at any meetings held outside the arbitration hearing that take
place between the City and the employee's representative.

Section I. - Salary Protection During the Disciplinary Process

a. Investigatory Suspensions. Salary protection for employees during
investigatory suspension is covered in Section 3 of this Article.

15
 b. Where the proposed penalty is anything less than discharge, the
penalty will not be imposed until proceedings have been concluded
under this Article, either by waiver by the employee, or the arbitrator's
decision, whichever is last.

c. Where the proposed penalty is discharge, and the employee has been
directed not to report to work, the Department will continue the
employee's salary pending the arbitrator's decision, if the employee
chooses to challenge the penalty.

Section J. - Cost to the Parties

All costs for the arbitrator's time, travel, etc. will be shared equally between the
parties. Each party will pay the party's own witness and exhibit fees and costs.

Section K. - Limitations on Choice of Forum

The parties agree that the disciplinary procedures outlined in this Section are the
exclusive procedures for the review of employee disciplinary actions. The parties
fully and completely waive whatever rights they may have had under Civil Service
Law §75 and §76.

Section L. - Extension of Time

By mutual agreement, the Association and the City can extend any time frame
contained herein.

Section M. - Informal Resolution Procedure

Prior to the service of formal charges, the Chief may initiate an informal
meeting with the employee and the Association, if the employee requests the
presence of the Association, for the purpose of attempting to resolve the situation
informally.
In the event that the meeting does not resolve the disciplinary action, formal
charges may be served on the employee at the end of the meeting. If the City
intends to use anything the employee says in this meeting against the employee in
any disciplinary action, the employee will be informed at the beginning of any
such meeting that whatever s/he says may be used against the employee in any
such action. The employee may refuse to answer any questions and in such case
this refusal shall not be considered insubordination.

If the Chief chooses to require the employee to answer any questions, after having
informed the employee that the answers will not be used against the employee in a
disciplinary action, then the refusal to answer may be considered insubordination.

16
 RELEVANT EMPLOYEES’ MANUAL RULES
THE RELEVANT GENERAL ORDERS AND RULES AND REGULATIONS

The City relies upon the following Rules and Regulations to support the charges
and specifications:
GENERAL ORDERS

General Order 3020 - City Jail Regulations

1. POLICY
The Ithaca City jail is to be used only for the temporary detention of prisoners before
arraignment in court, for a brief period following arraignment, or the temporary detention of a
prisoner to be transferred to another institution such as the County jail.

II. DEFINITIONS

City Jail or City Lockup: as defined by the NYS Commission of Correction, lockup shall mean
a place where individuals 16 years of age and over are temporarily detained while awaiting
disposition of their cases in the courts, before arraignment in court, or for a brief period after
arraignment or sentence while awaiting transfer to another correctional facility. An individual
who has not reached his or her 16th birthday shall not be detained in any adult lockup except in
accordance with section 304.1 of the Family Court Act or section 510.15 of the Criminal
Procedure Law.
9 NY ADC 7501.1
(This shall include the term "Local Correctional Facility" as defined in NYS Consolidated
Laws, section 40.2)

Restraint Chair: A chair with equipment designed to restrain or limit the movement of
prisoners who require extreme measures of control.

Chief Administrative Officer: Chief administrative officer shall mean the Chief of Police,
the person in overall charge of the City Jail.

Jail Coordinator: a supervisor assigned to the Patrol Division, designated by the Chief
Administrative Officer to run the day-to-day operations of the City jail as a collateral duty.

III. PROCEDURES
A. Admission Procedures
No prisoners will be left unattended unless properly secured in a holding cell. No access
doors will be left unsecured or propped open in the booking or cell block area. (Cross
reference with GO-3019, Prisoner Transport)

1. Before being placed in a cell or detention room, the clothing of the person of each

17
 prisoner shall be thoroughly searched for contraband or articles with which the prisoner
might injure the prisoner or others, or damage the cells. Personnel may perform more
intrusive searches, such as strip searches, visual body searches, or cavity searches
provided there is legal, factual basis to conduct these searches. In the case of a cavity
search, unless exigency exists, a search warrant must be obtained. For any of the three
more intrusive searches, supervisory approval is required.

2. Searching of a female prisoner shall be accomplished by an on-duty female police

officer, or other qualified female person when possible. If there is not a qualified
female available the shift commander will be notified to make arrangements to provide
one. The prisoner will remain secured and under constant supervision until a female
officer can complete the search.

D. Supervision of Detention Areas

4. Supervision of female prisoners shall be accomplished by a female jailer, and a female
prisoner shall not be placed in or removed from a detention area unless the female
jailer is present. The female jailer shall retain the key for the detention area for females
and no male person shall be permitted to enter an area where female prisoners are
detained unless accompanied by the female jailer.

IPD RULES AND REGULATIONS

Law Enforcement Code of Ethics

As a Law Enforcement Officer, my fundamental duty is to serve mankind; to safeguard lives

and property; to protect the innocent against deception, the weak against oppression or
intimidation, and the peaceful against violence or disorder; and to respect the Constitutional
rights of all to liberty, equality and justice.
I will keep my private life unsullied as an example to all; maintain courageous calm in the face
of danger, scorn, or ridicule; develop self-restraint; and be constantly mindful of the welfare of
others. Honest in thought and deed in both my personal and official life, I will be exemplary in
obeying the laws of the land and the regulations of my department. Whatever I see or hear of a
confidential nature or that is confided to me in my official capacity will be kept ever secret
unless revelation is necessary in the performance of my duty.
I will never act officiously or permit personal feelings, prejudices, animosities or friendships to
influence my decisions. With no compromise for crime and with relentless prosecution of
criminals, I will enforce the law courteously and appropriately without fear or favor, malice or
ill will, never employing unnecessary force or violence and never accepting gratuities.

I recognize the badge of my office as a symbol of public faith, and I accept it as a public trust to
be held so long as I am true to the ethics of police service. I will constantly strive to achieve
these objectives and ideals, dedicating myself before God to my chosen profession ... law
enforcement.

18
Definitions:

Gender
The use of the male pronoun shall include both male and female employees.

Insubordination
The willful disobedience of a lawful order issued by any commanding officer; any disrespectful,
mutinous, sarcastic, disrespectful comments or alterations to departmental written material or
posting of any written or pictorial material which reflects negatively on any employee; insolent
or abusive language or action toward any commanding officer. Insubordination includes failure
to follow the chain of command when approaching a superior officer in regard to non-
emergency matters. If an employee cannot resolve an issue with their immediate supervisor and
intends to take the matter to a superior officer, the employee is under a duty to so inform their
immediate supervisor.

Lawful Order
Any written or verbal directive issued by any commanding officer to any subordinate or group
of subordinates in the course of police duty which is not in violation of any law or ordinance,
or any Department rule, procedure, or instruction.

Order
An instruction or command given by a supervisor to a subordinate either orally or in
writing. Directions or instructions given by a supervisor in the form of a "request" will constitute
an order.

SECTION 1 - ORDERS AND DISCIPLINE

2.1 OBEDIENCE TO LAWS, ORDINANCES, AND RULES

Employees shall obey all laws of the United States, State of New York, local ordinances, or
laws and ordinances of any jurisdiction where they may be present. A conviction for violation
of any of the above shall constitute a violation of this section.

1.5 INSUBORDINATION
Employees shall not be insubordinate.

SECTION II -PERFORMANCE OF AND ATTENTION TO DUTY

2.6 COOPERATION AND COORDINATION

All employees of the Department will coordinate their efforts with other employees of the
Department so that teamwork may ensure maximum achievement and continuity of purpose in
attaining the objectives of the Department and accomplishing its mission. All employees are
charged with the responsibility of fostering and maintaining a high degree of communication,
coordination, and cooperation within the Department.

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 2.11 ATTITUDE AND IMPARTIALITY
Officers shall remain vigorous and unrelenting in the enforcement of the law, and all
employees shall maintain a strictly impartial attitude toward complainants, violators,
witnesses, and suspects.

2.12 COURTESY
Employees shall perform their duties in an efficient, courteous, and orderly manner, using
patience and good judgment at all times. They shall not use harsh, profane, or insolent language.
They shall be courteous and civil in their dealing with the public and other employees.

2.14 ASSISTANCE TO CITIZENS

Employees shall, in accordance with policies and procedures of the Department, render all
possible service to any citizen seeking information or assistance.

SECTION IV - GENERAL CONDUCT

4.1 CONDUCT
Officers shall so conduct themselves in both their private and professional lives as to avoid
bringing discredit upon the Department.
ISSUES

1. Is Grievant guilty of the charges as stated in the January 10, 2019 Notice of
Discipline?

2. If Grievant is guilty, is the proposed penalty of a thirty (30) day suspension without pay
appropriate?

3. If the proposed penalty is not appropriate, what shall the appropriate penalty be, if any?

FACTUAL BACKGROUND

Sarah Crews has been a police officer for twenty-one (21) years. Crews began her law

enforcement career in January 2002 with the New York City Department of Environmental

Protection. Crews then worked as a police officer with the Village of Owego. The City of Ithaca

Police Department (“IPD”) hired Crews in November 2007. Crews has never been disciplined.

From November 2007 to May 2015 Crews served with no allegations of misconduct or violations

of IPD policy. She consistently led the Department in overtime tours worked. The Department

documented her productivity. From 2016 to 2019, Crews ranked first in violation arrests and

20
parking tickets, and she ranked in the top five for calls for service.

In 2018, Crews also led the Department in total incidents resulting in arrests, total charges,

and total self-generated calls (342). (R.23). During 2018, Crews was involved in 139 arrest

incidents, issued 2675 parking tickets, 28 traffic stops, and responded to 837 calls for service. She

also worked more overtime hours than any other patrol member. Of these 3,679 reported civilian

interactions, there were two (2) civilian complaints and one (1) civilian notice of claim.

Crews identifies as openly gay and non-binary. She describes herself as a “Bulldyke” and

dresses in a masculine style. (T.1195-1222). Early in her career, Lt. Barry Banfield (“Banfield”),

then Officer Banfield and another officer ridiculed Crews’ appearance and created a fake ID with

Crews’ picture on an ID for “McLovin.” McLovin refers to a character in the 2007 movie “Super

Bad” starring Christopher Mintz as “McLovin.” IPD disciplined both officers. Banfield testified

about the McLovin incident. (T. 1603).

Banfield worked for the Department in 2008. In 2009, another officer asked him to

photoshop Crews’ ID photo onto a McLovin ID. (T. 1603). Banfield printed and posted the ID.

Banfield received a discipline penalty of two (2) days loss of leave time and mandated sexual

harassment training. He testified he sought Crews and approached her in the Department’s side

parking lot and told her it was stupid and apologized for doing it. Banfield believed he and Crews

had a fine professional relationship. (T.1604). Crews testified she and Banfield did not have a

professional relationship and she did not believe his apology was sincere. (T.1517-1538).

In May 2015, Crews told the Department she objected to functioning as a jailer to female

prisoners as required by the Department’s policies. Crews complained that the Department’s

policies protect male officers from allegations of improper contact with female prisoners but do

not provide the same protection to her as a homosexual female.

21
 In June 2015, there was a protest in front of the Police Department. (T. 1597). Many

officers and civilians were present; Crews came to work early and during shift change. She

approached Lt. Banfield (then Sgt.) and asked about her beat assignment. (T. 1597). He replied

202. Crews had just worked 202 on an overtime assignment. Banfield did not know she had just

worked 202. Crews responded, saying, she “would file a complaint with the Human Rights

Commission.” And “you guys are fucked.” (T. 1600). Banfield was embarrassed and let out a

“nervous chuckle.” (T. 1600).

Crews preferred beat was 204. Banfield assigned her 202 because she needed more

experience with burglaries and domestics. (T. 1601-1602). Banfield spoke with Crews, he

discussed the rules and regulations with her and discussed getting angry and yelling and why it

was unacceptable. This was verbal counseling. (T. 1603). Crews acknowledged her improper

behavior in telling Sgt. Robert Brotherton that she had exploded on Barry, yelling, swearing

completely losing her composure. Union “33” see email on June 25, 2015, email from Lt. Banfield

to Sgt. Michael Nelson.

The City and IPD issued Crews a NOD on October 14, 2015, the allegations concerned her

vocal opposition to her assigned jailer duties. The NOD was withdrawn. On July 27, 2016, the

Department issued Crews a second NOD for failing to report an incident and saying, “I don’t give

a fuck what it looks like.” The City also sought to institute a Performance Improvement Plan

(“PIP”) to help and track Crews’ improvement in courtesy and professionalism. (J.2). Crews

refused the PIP and demanded arbitration. The IPD withdrew the NOD.

The Department tried sending Crews for training but she refused. Deputy Chief (“DC”)

Vincent Monticello testified he tried to defer the July 27, 2016 NOD for six (6) months if no other

incidents of insubordination occurred, and she go to the “Emotional Survival of Police Officers”

22
training by Dr. Kevin Gilmartin. (C. 16; T. 1556-58). DC Monticello believed Crews would benefit

from the training. (T. 1557). Crews was not interested in the training and refused to attend. (T.

1490). Crews considered the training victim blaming. Monticello could have ordered training but

felt that the Gilmartin training should be voluntary. (T. 1561). Crews believed the offer of training

implied her problems at work were related to her mental health not IPD’s policies. (T. 1496).

On August 10, 2016, Crews filed a complaint with the Equal Employment Opportunity

Commission (“EEOC”)(C.10 p.12). On February 23, 2017, Crews commenced an action in United

States District Court, Northern District of New York against the City of Ithaca, John R. Barber,

Chief of Police, Pete Tyler, Chief of Police, and Dennis Nayor alleging unlawful workplace

discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York

State Human Rights Law (“NYSHRL”) and constitutional violations under 42 U.S.C. § 1983.

Tyler testified he spoke privately with Crews in late 2018 to ascertain if the Department could help

or accommodate her. (T.561). She mentioned only her federal complaint. (T.562).

The facts are mostly undisputed. Crews admitted to much of the conduct in federal

litigation and the Loudermill hearings. Internal Affairs (“IA”) investigations, Body Worn Camera

(“BWC”) footage, written complaints, interviews, and reports substantiate the factual allegations.

On April 22, 2018, Crews was dispatched to 134 Linden Avenue in response to a report of

an intoxicated person. BWC footage captures most of Crews’ exchanges and actions with the

public. The BWC video of Crews and Sgt. David Amaro from April 22, 2018, captures the

incident. Upon arriving, individuals present informed Crews that three Ithaca College students

were there uninvited. Crews found one of the uninvited students, Arianna Ashby (“Ashby”) in a

bathroom and physically pushed Ashby out of the bathroom. Crews received information from

several residents at the scene that Ashby was creating a disturbance at that location, and they

23
wanted her to leave. Ashby left the location on foot. Crews was concerned that Ashby may have

been too intoxicated to walk back to Ithaca College, so she checked the area for her and located

her near the intersection of E. Seneca St. and Eddy St. (C.3 see p. 6-9 reporting that Ashby

attempted to interfere with Police and EMS).

The Ithaca City Police Department Officer Report for Incident I 18-07444, cites a 90 G

Liquor Law Violation. Crews’ narrative indicates she issued Ashby an appearance ticket for

underage possession of alcohol. The accusatory box on the appearance ticket is checked for

underage Possession of Alcohol ABC 65-C, Violation at Eddy St. with intent to consume such

beverage. Sgt. Amaro filed a report on April 22, 2018, which states that Ashby “acted in an

intoxicated and unreasonable manner throughout our time together.” Amaro referenced ABC

Section 65. (C.3).

On July 31, 2018, DC Monticello received Ashby’s Notice of Claim (“NOC”) which she

filed with the City on July 24, 2018. The NOC alleged Crews assaulted Ashby by tackling and

throwing her to the cement. (C.3). Complaints are brought to the Deputy Chief of Professional

Standard, if called for the DC will open an internal investigation. The internal investigation is

generally turned over to a lieutenant who gathers information for an initial review. A sergeant

sometimes helps. The DC interviews the subject of the complaint. (T. 71-74). The data collected

is tracked through the Spillman System., the IPD’s records management system.

Internal Affairs opened an investigation dominated as “I 18-IA-28” and DC Monticello

determined the incident was recorded as Department Case I 18 -07444. (C.3). He pulled the file,

reports and BWC footage. BWC shows Ashby’s torn clothing and large scrape to her knee. DC

Monticello sent the materials to Lt. Joly to review. (C.3). Joly reviewed the BWC footage. He

agreed with Crews that the temperature, time of night and Ashby’s level of intoxication called for

24
intervention and that the force used was objectively reasonable.

DC Monticello questioned the forcible arrest of Ashby for underage possession. DC

Monticello testified that it was improper to go hands on for a summons. (T. 1563). BWC video

captures Crews saying to Ashby, “If you don’t want to do it the easy way, you’ll do it my way.”

Crews also said, “stop acting like a little animal.” And “shut your mouth little girl, I’ve had enough

of your shit tonight. You’re not in control.” (C.3, 7). At the Loudermill hearing on November 28,

2018, Crews admitted she made these statements. Crews stated she used language to control the

situation. (C. 3).

Lt. Joly investigated the incident. He wrote, “In summary, I believe Officer Crews had

probable cause to make an arrest for possession of an open container of alcohol in public, as well

as underage possession of alcohol.” (C.3 p.7). He also writes, “Although using force to provide a

courtesy ride home is not within policy or training, there was sufficient cause to make the arrest

for the above noted violations.” The violations noted were for “possession of an open container of

alcohol in public, as well as the underage possession of alcohol.” Joly concluded, “Although I

view the actions of Officer Crews to be legally sound, I believe that there is a need for additional

follow up training.”

In the supplement section, DC Monticello wrote, “one matter that needs to be addressed is

Officer Crews deciding to make a custodial arrest on an ABC Violation for Underage Possession.”

He states, “Based upon the writer’s past training and experience, the writer is aware that ABC

violations are an Appearance Ticket only.” “The writer took a look at IPD Policies dating back to

the 2012 Policies (see attachment 4) and the policies from 2015-2018 (see attachment 3). The

writer did not see any written policies pertaining to ABC violation.” Monticello recommended that

future policies address ABC violation arrests. Both Joly and Monticello made no findings that

25
Crews had violated IPD policy for ABC arrest. Neither supervisor recommended IPD discipline

Crews.

After Ashby filed a Notice of Claim, DC Monticello and Lt. Joly investigated and

determined Crews had probable cause to arrest Ashby and Crews’ use of force was reasonable.

(C.3 p. 9-22). Joly recommended follow up training “in the form of a defensive tactics refresher.”

(C. 2). DC Monticello expressed concerns that the IPD policy and provisions of ABC Section 65

seem to prohibit a custodial arrest of a subject for such a charge. DC Monticello did not report

Crews’ language or inappropriate interaction with Ashby. Sgt. Amaro testified “No, I mean, taking

her into custody made sense, especially for her safety, otherwise we would have given her a ticket

and allowed her to roam intoxicated home and seemed unsafe.” (T. 836).

In the early morning hours of June 27, 2018. Lt. Joly was supervising the midnight tour

and Crews was assigned to work the same tour. A female prisoner, Cheyenne Elliott, was

transferred to IPD and Joly ordered Crews to return to the station and perform jailer duties. Crews

had concerns about sex/gender discrimination in assigning her jailer duties and searching female

inmates. Officer George DuPay (“DuPay”) had retrieved the female detainee from the New York

State Police.

When Crews arrived at the station, she walked up to Officer DuPay and told him, “You

can go fuck yourself.” DuPay did not perceive Crews’ actions to be major. (C. 2). Crews then met

with Lt. Joly and stated something to the effect of “this is fucking wrong and you know it” “you are

discriminating against me…why can’t she be put on the bench tonight.” Crews secretly recorded

the exchange. Crews then said that if Lt. Joly insisted, she perform the search and jailer duties, she

were requesting personal time or sick time to go home. Lt. Joly granted her request for personal

time leave. Crews later indicated that she wanted to use sick time because she was “too upset” to

26
remain at work. Lt. Joly advised her he had already approved her personal time, and Crews could

ask the Chief if she wanted it changed. Lt. Joly told her she could leave the station because her

personal time was approved. She remained for a few more minutes, then Lt. Joly instructed her to

leave. Crews initially refused to leave until Joly informed her, she was acting insubordinate. Crews

admitted telling Lt. Joly it was “bullshit,” (C.2, Supplemental) and telling DuPay to “go fuck

himself.” (C.2, supplemental). Crews believed the order to be invalid and unlawful because it

discriminated against her. She was aware of rules 2.12 and 1.6 however she believed her responses

were appropriate.

On July 31, 2018, Crews issued Timothy Pettaway (“Pettaway”) a parking ticket for

parking illegally on Osmun Place near the intersection with Stewart Avenue. BWC video captures

the interaction between Crews and Pettaway on July 31, 2018. (C.7). Pettaway’s truck is parked

illegally; half of the vehicle is in a parking area and the other half is on a no parking area. As Crews

is issuing Pettaway a parking ticket, Pettaway warns Crews he would be speaking to “Pete” (T.

1311), and “this is the second ticket you gave me for bullshit.” Chief Tyler and Pettaway went to

high school together and were teammates on the football team. (T. 545). Pettaway is also a

successful local small business owner. (T. 565). Tyler testified he does not recall speaking with

Pettaway about Crews. (T. 565). Pettaway did not testify at the hearing.

When Pettaway states he is going to call “Pete,” Crews corrects his attitude and tells him

to “start obeying the law, much easier.” (C.4). At midnight, August 1, 2018, Crews reports via

radio that “a citizen is going to call Pete.” (C.4). Pettaway came to the Department and spoke with

Lt. Scott Garin. Pettaway described Crews as rude, and he was tired of how she interacted.

Pettaway also said, “other people reference her being very active in the same manner with other

people,” and that this negativity reflected on the Department. Later that night Lt. Garin spoke with

27
Crews, and she seemed angry and agitated. She recalled the encounter.

The matter was referred for an internal investigation and Lt. Joly investigated. He reviewed

BWC and tried to interview Pettaway. Lt. Joly concluded that Crews was unprofessional and

needlessly confrontational. (C.4). Joly wrote “[Crews] either lacks the ability to de-escalate

situations or enjoys the resulting conflict.” Joly recommended Crews be compelled to undergo a

mental health evaluation, receive verbal judo training, attend Dr. Gilmartin’s training for

Emotional Survival for Law Enforcement and lose forty (40) hours of accrued leave time.

On August 24, 2018, at 10:39 p.m. John Bailey (“Bailey”) a Lyft operator was dropping

off passengers on Linden Avenue. A passenger exited into the street, and he warned the passenger

of an oncoming car. (C.5). The passing vehicle was a IPD vehicle. After Bailey dropped off the

passenger, he followed the IPD vehicle down the street. The IPD vehicle stopped with no flashing

red lights and blocked traffic. After several minutes, Bailey drove around the stopped IPD vehicle.

Crews pulled him over.

BWC video captures the incident. (C.7). BWC video records Crews’ interaction with

Bailey. She is firm and commanding. Bailey passed Crews’ vehicle and she pulled him over. Crews

warned Bailey, “I suggest you learn to play by the rules around here.” When she returned his

license she said, “John Bailey, you’re on my radar, smarten up with your driving.” (C. 7, C.5).

Bailey questioned Crews about the stop, and she answered authoritatively and assertively.

Crews described Bailey’s driving as reckless, and she corrected his poor judgment. (C.5) Returning

with his license and registration, but no ticket, she said, “got my eye on you, John Bailey.” Bailey

took her words as a threat and reported Crews to IPD. Bailey emailed Chief Tyler on August 24,

2018, and complained about Crews’ conduct. (T. 566- 67). Bailey contacted Chief Tyler on

Facebook and Tyler recommended he file a complaint. (T.594). Tyler confirmed with Bailey that

28
his complaint was filed. There is no evidence Bailey and former Chief Tyler were or are drinking

buddies as Crews alleges. Bailey did not testify at the arbitration.

Chief Tyler referred the email to DC Monticello who opened an internal affairs case I 18-

IA-33. Lt. Joly investigated and identified several areas of concern. Crews slammed the vehicle’s

door and she did not follow the proper protocol for traffic stops. She did not identify herself, state

the reason for the stop, and ask for documentation. Joly described Crews’ demeanor and one as

escalating a simple traffic stop. (C.5). Joly contacted Bailey by phone and apologized for Crews’

unacceptable behavior. Joly referred the matter to Monticello who referred it to the Chief of Police.

On September 1, 2018, the IPD issued Crews an employee counseling memorandum

reminding her to adhere to its rules and policies for courtesy and conduct. On November 28, 2018,

Crews was interrogated at a Loudermill hearing. She remembered stopping Bailey for reckless

driving. She denied slamming the door and stated she acted professionally and her behavior was

appropriate.

Using profanity among members of the IPD is commonplace. Officer Eric Doane

(“Doane”), an eighteen (18) year veteran of the Department testified that profanity was

commonplace. (see T. 884 and T. 858). Officers often told supervisors “this is bullshit.” Most

officers used profanity. (T.860). Doane was President of the Ithaca Police Benevolent Association

(“IPBA”) for several years and could recall no member ever being disciplined for using profanity.

Retired Sergeant Brotherton testified IPD never enforced military formalization in

interactions between subordinates and supervisors. Brotherton testified at (T. 1071, T. 1084-1085).

Brotherton testified officers used “fuck and fuck you” in the presence of their supervisors.

(T.1087). Acting Chief Joly testified that the use of profanity was sometimes okay and other times

it is not. (T.403). His lines were “swearing in general” and “swearing at a member of the public.”

29
(T.403). Joly testified Crews swore when upset. (T. 481).

On October 11, 2018, Crews received a call for a welfare check of a suicidal person. (C.6).

Mark Taub, Jake Taub’s (“J.T.”) father had made the call. When Crews arrived at the location J.T.

was outside in his bathrobe waiting for Crews. She spoke with J.T. and transported him to Cayuga

Medical Center. J. T. was depressed and suicidal. After getting into the police car, Crews drove.

She and J.T. talked, and he reported taking 3 to 4 Klonopin and drinking Gin. J. T. did not

complain about Crews.

In communication with Dispatcher Samantha Gonzales (“Gonzales”), Crews told her J.T.

had taken 3-4 Klonopin. Crews and Gonzales are friends. Gonzales asked if EMS was needed and

told Crews (Mark Taub) the father wants a call about his son. (C.6). BWC video records the

transport. Crews believed the son was already communicating his status with the father, and that

the Health Insurance Portability and Accountability Act of 1996 (“HIPPA”) prevented her from

revealing any medical information about J.T. Gonzalez did not complain about the incident or her

interaction with Crews. (T. 1381). Crews told Gonzalez, “that Jake is an adult, and she can’t share

any information and will be tied up.” She directed J.T. to share the details with his parents. Taub’s

family did not object or complain. J.T.’s mother remained on the phone during the transport and

Crews dropped off J.T. at Cayuga Medical Center at 11:58 p.m.

On October 11, 2018, Joly received an email from Sgt. Banfield complaining that Crews

was unprofessional and rude to a dispatcher over a radio call. (C.6). Banfield reported Crews

refused to return a phone call from the father of a suicidal person. Banfield started the Internal

Affairs Complaint. He complained that Crews “was extremely unprofessional and rude to the

dispatcher” and “The call was so egregious to me that I requested a copy of the radio transmission

for dispatch for quality control purposes.” (C.6).

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 At 12:25 a.m. Banfield forwarded his complaint to Lt. Joly. Joly forwarded the complaint

to DC Nayor who forwarded it to the City’s attorney. (C.6). DC Nayor reviewed the incident. DC

Nayor was new to the Department. In his opinion, Crews’ attitude and behavior was unacceptable,

rude, discourteous, and unprofessional. He interpreted her comments with the dispatcher about

what “3-4 Klonopin means” as snarky, rude and discourteous. (C.6 and 7).

On November 14, 2018, DC Nayor met with Dispatcher Supervisor (“DS”) David Cotterill

(“Cotterill”) to discuss the incident. Cotterill gave a statement in evidence as C.6. Cotterill testified

that his statement to Nayor was true. At the November 28, 2018, Loudermill hearing, Crews

acknowledged the father wanted to be contacted, she believed J.T was on the phone with his

parents.

DS Cotterill testified he has been supervisor at the Tompkins 911 Center for 11 years. On

October 11, he was working and overheard the call. Gonzalez is a newer dispatcher and is

inexperienced. Gonzalez did not complain about the incident or her interaction with Crews. (T.

1381). Gonzalez did not testify.

Lt. Theodore Schwartz (“Schwartz”) testified that officers were advised at a meeting to

bring any complaints about Crews to the attention of command staff. (T.787 -91). Complaints are

brought to the Deputy Chief of Professional Standards. The Department reviews the internal affairs

investigations. The DC reviews the file and recommendations. Then the DC forwards the file to

the Chief for a final determination. (T. 75-76). On January 10, 2019, the IPD filed disciplinary

charges against Crews.

On January 26, 2021, U.S. District Judge, Mae A. D’Agostino granted Defendants’ motion

for summary judgment in the federal action and ordered the Clerk of the Court to enter judgment

in Defendants’ favor and close the case. In dismissing Crews’ claim of retaliation, the Court stated,

31
“she cannot demonstrate a causal connection between the protected activity and the adverse

employment action” and in dismissing Crews’ claim for a hostile work environment stated,

“Plaintiff cannot establish that Defendants’ conduct was sufficiently severe or pervasive to create

a hostile work environment under Title VII.”

The City and IPD moved to dismiss this Arbitration on the grounds of res judicata and

collateral estoppel on June 7, 2022, and oral arguments on the motion were held remotely on June

9, 2022. A letter brief from Grievants was received on or about June 27, 2022, and a reply from

the City was received on or about July 15, 2022. My August 18, 2022, decision granting the motion

in part is incorporated herein. I held,

The Second Circuit's decision is controlling authority on Crews’ statutory

claims, and clearly, the Court dismissed her Title VII and NYSHRL
claims. In so doing, the Court specifically addressed the claims of
gender/sex discrimination and retaliation and found that no reasonable jury
could find the City violated her statutory civil and human rights.

In dismissing Crews’ Title VII and NYSHRL claims, the Court made clear
and ruled that Crews’ assertion of gender discrimination and retaliation
have been fully litigated and rejected. This holding is res judicata and
collateral estoppel on the underlying facts and issues of gender
discrimination and retaliation. Therefore, Grievants may not raise this
defense in the disciplinary arbitration proceeding against Crews. However,
the Court did not address just cause under either the preponderance of the
evidence standard in non-termination cases or the clear and convincing
standard in termination cases.

POSITIONS OF THE PARTIES

THE CITY’S POSITION

The City argues Crews is guilty of all the charges in the January 10, 2019 NOD. The

charges cover five (5) incidents. The first incident occurred on June 27, 2018, when Crews violated

Sections 1.5 and 2.12 of the IPD’s rules and regulations by responding to a supervising officer’s

direction to search and jail a female prisoner in an insolent and abusive manner.

The second incident came to the Department’s attention on July 24, 2018, when it received

32
a Notice of Claim served by Ashby. (C.3, attachment 2). The incident occurred on April 22, 2018.

Crews violated Section 1.1, 2.12 and 4.1 of the IPD’s rules and regulations through her words and

actions toward Ashby. The third incident happened on July 31, 2018, when Crews violated

Sections 2.12 and 4.1 of the IPD’s rules and regulations. The City alleges she acted unnecessarily

confrontational, and was discourteous and rude towards Pettaway when issuing him a parking

ticket. The fourth incident occurred on August 24, 2018, and involved Bailey. The City alleges

Crews violated rules 2.12 and 4.1 when she acted unnecessarily confrontational, and was

discourteous and rude during a traffic stop. The fifth incident took place on October 11, 2018, and

involved Crews’ failure to help Mike Taub who was simply looking for a phone call about his

son’s welfare and when she acted unnecessarily discourteously and rude toward a dispatcher.

The City maintains that the five incidents happened within a five month span and occurred

while Crews was already facing two separate NODs and the fifth incident happened after the City

had issued her a counseling memorandum reminding her that her actions reflect on the Department

and that she is expected to be professional and courteous in her interactions with the public.

The City rejects any claimed discrimination or retaliation and argues the Arbitrator’s

August 18, 2022, decision granting the City’s motion to dismiss Crews’ defense bars

reconsideration. Crews and the Union argue these charges would not be brought against anyone

other than Crews. The City insists Crews was offered counseling and training along with a

Performance Improvement Plan. These were real opportunities to review and better understand the

policies she complained about. Instead of accepting training and counseling, Crews sued the City

for enforcing its policies and alleged discrimination and retaliation. Crews’ lawsuit was dismissed.

The City argues it cannot turn a blind eye to Crews’ actions and the complaints from other officers

and the public.

33
 There was a proper internal affairs investigation. The City provided Crews with every right

under the CBA and law. The facts are undisputed and discipline is warranted. The City insists

Crews should be found guilty of the charges and Specifications and a thirty (30) day suspension

without pay be imposed.

The City argues that under Article XIII Section H (3) of the CBA, it has proved just cause

to discipline Crews. It has met the preponderance of the evidence standard, and Crews admitted to

the underlying facts. The charged misconduct violated the Department’s rules and regulations and

Crews is guilty of the charges and Specifications. The City contends it has satisfied Arbitrator

Daugherty’s seven tests of just cause.

The City maintains that under the parties CBA three things must happen for a penalty to

be imposed; 1. The Chief must have probable cause to believe the employee is guilty of

misconduct; 2. Did the Department prove guilt by a preponderance of the evidence; and 3. Was

there just cause to discipline Crews for her misconduct. The City asserts the issues here are, did

Crews commit the acts alleged in the January 10, 2019, NOD, and should the penalty stated be

imposed. Any framed issue should consider the clear language of the Agreement and the standards

of review.

The City incorporates the Arbitrator’s August 18, 2022, decision on the motion to dismiss

barring Crews from presenting evidence of gender and sex discrimination or retaliation in defense

of the Discipline into its arguments. The arguments that discipline was brought because she

complained about discrimination should be rejected. The City asserts Crews was not subject to

unequal or discriminatory treatment and the burden of proving unequal treatment is on the Union.

This is a two-step inquiry, (1) Was the employee treated differently from others; and (2) the

circumstances surrounding the misconduct was substantially like those individuals receiving lesser

34
penalties. See Elkouri & Elkouri 7th Ed. (2012). The City argues a reasonable basis may exist for

variations. For example, if one employee was warned and the other employee was not for the same

misconduct. Citing Alan Wood Steel Co. 21 LA 843 (Short, 1954).

The City did not treat Crews differently than other officers. The circumstances of Crews’

misconduct differs from those of other officers who received lesser penalties for different acts. The

City highlights then Chief Tyler’s justification in seeking the proposed penalty. Crews was

counseled for unprofessional treatment of the public. The City charged Crews with discourteous

behavior and misconduct under two NODS. A college student filed a Notice of Claim, and

complaints came from her colleagues. Two citizens complained about her rudeness and

unprofessionalism.

Crews cannot make comparisons with other officers because of the number of complaints

received about her in a five (5) month period. Tyler’s testimony at T. 560-561 supports his careful

review of Crews’ actions and past counseling to correct her behavior. Tyler testified that

counseling did not work, and he sought progressive discipline.

Former Chief Nayor and DC in charge of professional standards testified that in his

experience, Crews’ action requires discipline. (T. 650-51). The City maintains Crews has not

proven disparate treatment because there is not another officer in the Department with a record

like hers. The City contends no one was told to scrutinize Crews. Officers receiving complaints

from the public or other officers were directed to bring those complaints to command staff. (T.

768-791). Lt. Schwartz’ testimony supports the fact that complaints of Crews’ conduct were

coming from other officers and the public. The City received multiple complaints about Crews

internally and externally. The City tried to address her conduct and prevent incidents that could

expose the City to liability.

35
 Staff did not mock Crews. The “McLovin incident” happened in 2009, ten (10) years before

the NOD. Judge D’Agostino noted in her decision (C.10 p. 22-23) that “although clearly

inappropriate” these were “ordinary tribulation of the workplace” and “the sporadic use of abusive

language, gender-related jokes and occasional teasing” did not support a claim of discrimination.

Banfield testified about the incident and no factual basis connects discipline to the McLovin

incident. The City argues the McLovin incident is a red herring. Management employees who

made the decision to discipline Crews were not involved in the McLovin incident.

The second incident of alleged mocking occurred when DuPay testified Banfield joked

about changing Crews’ beat assignment. This too is a red herring. Banfield testified he counseled

her about yelling and being angry with him. He considered her behavior to be insubordinate. Crews

acknowledged her behavior was not her typical behavior. (T. 1603). The City argues the

Department was trying to get Crews to recognize her angry outburst were not appropriate. In 2015,

Crews knew this was inappropriate, yet continued to act insubordinate and discourteous toward

officers and citizens.

The City asserts complainants were not “drinking buddies” with former Chief Pete Tyler.

John Bailey was not a “drinking buddy.” Timothy Pettaway was not a “drinking buddy.” Tyler

testified he does not recall speaking with Pettaway about Crews. (T. 565).

The City tried to have Crews go to training for anger management and other stress related

issues, but she refused, calling it victim blaming. (T. 1496). Crews cannot be heard to complain

that she shouldn’t be disciplined because she hasn’t been trained.

The City conducted a full and fair investigation. Complaints came from various sources,

citizens, anonymous tips, phone calls, email, the IPD website, supervisor initiated, letters or calls

to the Chief’s office. Once a complaint is received, if warranted, the DC opens an investigation. A

36
lieutenant investigates the complaint, and a sergeant may be involved. The investigation is tracked

and there is a department review of the internal affairs investigation. The DC forwards the file to

the Chief for a final determination.

The City argues Crews is guilty of Specifications 1, 2, and 3. Crews is guilty of violating

rule 1.1. ABC Law § 65-c provides a person in violation of the section is to be summoned before

a court. Crews arrested Ashby in violation of ABC § 65-c. In doing so, she also violated rule 1.1

which requires she obey the laws of the state. The BWC footage shows Crews violating 2.12 and

4.1. Crews was aware she was to perform her duties in an efficient, courteous and orderly manner,

using patience and good judgment. Crews used harsh and profane language and she was

discourteous. She is guilty of Charge 2.

The City argues the June 27, 2018, incident in jailing Cheyenne Elliot was properly

investigated and the City had probable cause to discipline Crews. During her November 28, 2018,

Loudermill hearing, Crews admitted to the conduct. Evidence substantiates the charge and there is

just cause to impose discipline. Crews knew the consequences of her action and consciously

disobeyed the rules.

The City avers Crews is guilty of Specifications 6 and 7. BWC captures the event and Lt.

Joly properly investigated the complaint. He found it credible and referred it for further action.

Crews has been counseled several times about her demeanor and overall courtesy. (C.4). The City

maintains her refusal to respond to these counseling sessions and her continuous escalation of

minor conflicts with the public is unacceptable. She knows the rules yet disregards them. The

Pettaway incident could have been handled differently. Crews overreacted to what she perceived

as a threat to her authority. Her unprofessional and discourteous actions call for discipline.

The City argues Crews is guilty of Specifications 8 and 9. Crews’ interaction with John

37
Bailey violates rules 2.12 and 4.1. She was rude and discourteous and escalated a simple traffic

stop. IPD had counseled Crews about her tone, discourtesy and demeanor, yet she continued to be

rude, condescending, abrasive and argumentative. (C.5). Joly stated, “the behavior that officer

Crews consistently displays cannot be tolerated. It will, without question, undermine the reputation

of our agency as a whole.” (C.5). The City maintains it had probable cause to bring the charges.

The facts are clear, and Crews knew the rules and IPD had counseled her. Her words violated rules

2.12 and 4.1 and the City has just cause to discipline her.

The City alleges Crews is guilty of Specifications 10 and 11. She refused to call the father

and was rude to the dispatcher. BWC footage captures the interaction. DC Nayor properly

investigated. He agreed with Banfield that Crews’ statements were rude and inappropriate.

Cotterill’s statement supports the Department’s decision to discipline Crews. Cotterill’s attempts

to change his statements are suspect. He thought Crews was argumentative and nonresponsive to

the father. Cotterill in his statement described Crews as sarcastic, condescending, and

argumentative. Her reputation over the radio is that she is intimidating and demanding. When he

spoke to DC Nayor, Cotterill believed Crews words to the dispatcher were inappropriate. (T. 1308-

39). The City argues the October 11, 2018, incident continued Crews’ pattern of rude and

inappropriate behavior. She was aware of rule 2.14 of the rules and violated it.

The preponderance of the evidence establishes Crews’ guilt on the Specification and

discipline is needed. In arguing for a thirty (30) day suspension without pay, the City alleges Crews

consciously disobeys Department rules. Crews put her personal litigation above her responsibility

to follow Department rules and regulations. Crews had difficult and strained interaction with

colleagues, supervisors, and citizens. Crews wanted control but exercised it on her terms not in

agreement with Department rules. Crews follows the rules when she wants and disobeys them

38
when it suits her. Her language is abusive, rude, demeaning, and discourteous.

Many members of the IPD have tried to help Crews with the stress she experiences. She

refuses help and takes matters into her own hands. The City argues that Crews could not change

the Department’s jailing policy, so she sought control in other improper ways. She applied her own

brand of workplace justice. She used litigation as a sword and threat saying in 2015, she was going

to “file a complaint with the Human Rights Commission” and “you guys are fucked.” (T. 1600).

The Department has tried to correct her behavior, she refuses help. The purpose of discipline is

corrective, and Crews’ behavior needs correcting. The City argues that it has proven the charges

and Specifications by a fair preponderance of the credible evidence. The City insists that Grievant

is guilty of the charges and Specifications and the thirty (30) day suspension without pay is the

proper penalty.

THE UNION’S POSITION

The Union argues the City has failed to meet the burden of proving that the allegations are

true and the penalty sought is appropriate. Grievant denies Charges 1, 2, 3, 4 and 5 and

Specifications 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11. The Union maintains that under the just cause

standard I must apply the seven tests of just cause. The Union argues the NOD citing five (5) 2018

incidents are individually and collectively trivial in current day issues in law enforcement. The

Union contends there has been a deliberate strategy to orchestrate the investigations and charges

and the complaints are not based on her ability or performance. The City ignores serious

misconduct of other officers and engages in selective enforcement of Department rules as shown

by Banfield and his relationship with subordinates and displaying favoritism. (T.1440). Another

example of selective enforcement involved Sgt. Allard pepper spraying a handcuffed prisoner on

the floor.

39
 Officer Crews’ anxiety and work-related stress affected her performance. Police officers

working overtime is a major contributing factor leading to poor work performance, disciplinary

issues and work-related stress. See http:llojp.gov.nij.grants. The City’s action and inaction

substantially intensified Crews’ emotional distress and directly triggered behaviors the City now

relies upon to justify her discipline and termination.

The Union maintains the Arbitrator must require the City to satisfy its burden of proof. The

City must establish every element of the charge and specification by a preponderance of the

credible evidence. The proof must establish actual misconduct and the Arbitrator must make a

finding of fact as to each part of each specification. The Union asserts the City and Police

Department have unclean hands and have carefully prosecuted Crews’ discipline and civil rights

action with a single coordinated response.

The City must establish by a preponderance of the credible and reliable evidence offered

there is “just cause” for a finding of guilt and the imposition of a penalty for the conduct as alleged

and proven. The Union insists review of the Internal Affairs Logs and redacted Internal Affairs

Reports confirm that the City and Department’s heightened scrutiny was reserved for incidents

involving Officer Crews. The City cannot evade responsibility for showing that the discipline

sought is free of the taint of unfairness and improper motivations.

The Union maintains the City has not proved just cause for the imposition of any discipline.

The just cause standard demands scrutiny of the allegations against an objective standard of

expected conduct and objective standards measuring sanctionable deviation from those objective

standards of expected conduct. The Union urges the Arbitrator to apply Arbitrator Daugherty’s

“Seven Tests of Just Cause.” The City’s proof fails to show that Crews knew or should have known

that the acts alleged misconduct violated a rule or regulation and that an expectation of discipline

40
would flow from a substantial deviation from that known standard of conduct.

The Union organizes the allegations into two categories: 1) claims of discourtesy to

member of the public; Ashby, Pettaway, Bailey, Mark Taub, father of J. T., and Dispatcher

Gonzalez, and 2) claims of profanity.

As for Specification 1, the City’s position is that Crews should have issued an appearance

ticket on the street for the offense of ABC §65 (c) (3) and let Ashby walk away. The Union argues

the City’s position ignores the evidence that Crews could have charged Ashby with several other

penal law offenses or crimes but in the exercise of her discretion chose not to charge those offenses.

Letting Ashby walk away with an appearance ticket would have jeopardized Ashby’s life because

she was highly intoxicated and underage.

Under the just cause standard it cannot be reasonably stated that Crews should have known

her actions might subject her to discipline. DC Monticello found Crews’ actions in using force

arresting Ashby to be reasonable. He did not recommend discipline. He recommended “Future

policies address ABC Violation Arrests” and “Roll Call Training for Lt’s and Sgt’s on ABC

Violation Arrests.” DC Monticello concluded the Department policy was unclear on arrest for

ABC violations. Crews cannot be disciplined for violating an unclear Department rule.

The Union contends the Department lacks a standard of courtesy and use of profanity.

There is no objective standard of conduct or definition of “Courtesy” in rule 2.12. The G.O.

definition of courtesy states, “they shall not use harsh, profane or violent language.” Profanity was

commonplace in the Department. Officer Doane, Investigator Barksdale, Lt. Amaro, Retired Sgt.

Brotherton, Officer Crews, and Chief Joly testified foul language was commonplace.

About Specifications 2 and 3, in using harsh and aggressive language toward Ashby, Crews

was trying to gain compliance from a highly intoxicated and non-compliant college student. Ashby

41
resisted all verbal and physical efforts to gain compliance and secure her safety. Ashby said “fuck”

over 40 times during the incident. Gaining compliance from intoxicated individual requires

officers to speak directly with subjects on their own terms.

Crews’ supervisor, Sgt. Amaro was present and assisted Crews throughout the interaction.

In reviewing the incident, DC Monticello did not criticize Crews’ use of force or profanity. No

Department member complained about Crews until July 24, 2018, when Ashby filed a Notice of

Claim. Crews’ comments do not rise to the level of significant misconduct.

If Crews’ conduct was improper, Amaro and Monticello would have referenced it in the

IA report and opened an IA investigation. The courtesy rule has not been enforced, recognized or

defined. It is unjust to begin selective enforcement of the rule with Crews.

Specification 4 alleges Crews was discourteous to Officer George DuPay and Lt. Joly.

DuPay, the target of Crews profanity on June 27, 2018, found the comments innocuous. Joly

testified he did not see the interaction between Crews and DuPay. (T. 169, 477). The Union argues

the factual allegation of Specification 4 and 5 are inaccurate. Crews did not say “bullshit” twice.

She said, “this is fucking wrong, and you know it’s wrong.” She also said, “you are discriminating

against me why can’t she be put on the bench tonight?” Crews never described the order as

“bullshit” but twice asserted the order was discriminatory and “fucking wrong.” Her conversation

should not be construed as violative of the Department’s standard of acceptable and commonplace

use of profanity.

The Union maintains the Department has not clearly defined when such tense language is

acceptable and when it is not. Subjective interpretation leaves officers with no true guidance. The

Department’s enforcement of the rules against profanity is arbitrary and inconsistent. Crews’

innocuous use of profanity follows IPD’s commonplace and accepted use of profanity.

42
 The Union argues Crews received no training, counseling or guidance about courtesy or

acceptable speech. Seeking to discipline Crews for being discourteous is unfair because the IPD’s

policies are unclear. The terms tone and tenor and demeanor are subjective and lead to uneven

enforcement.

The Union argues the City did not conduct a full and fair investigation. Instead, the City’s

investigation was of poor quality, incomplete, and tailored to ensure a particular outcome. Crews’

actions have been subjected to a level of heightened scrutiny unlike any other officer. The Union

contends the Internal Affairs file confirms a coordinated prosecution of only Crews. (C. 2-6 and

R. 27-31). Investigations require meaningful interviews of individuals with firsthand knowledge.

The City failed interview Officer Doane. He was with Crews during the incident with John

Bailey. (T. 862). DC Nayor was inexperienced and did not conduct interviews with people with

firsthand knowledge. Even so DC Nayor recommended that the City take no disciplinary action.

(C.3). Monticello recommended the City train Crews in de-escalation and refer her for a Mental

Health Fitness for Duty evaluation. (C.4).

As for Bailey incident, the recommendation was for a mental health evaluation. Crews was

targeted with a pre-determined outcome, the filing a NOD. Crews is the only member of the

Department ever subject to a NOD for discourtesy. The Union argues just cause requires the fair

and consistent application of discipline for all similarly situated employees. Just cause requires

fundamental fairness and equitable enforcement of the rules and regulations. IPD is disciplining

Crews for being too gruff, too masculine and “unladylike.”

IPD prosecutes Crews for minor transgressions of alleged discourtesy. The Union insists

there is no fair and consistent discipline in IPD. Officer Allard pepper sprayed a college student

who was in the prone position and handcuffed. The City paid $250,000 to the victim but Allard

43
was not disciplined. Instead he was promoted. Crews words were spoken to express her outrage at

the IPD jailer policy. Her recording proves she never said “bullshit.” The IPD rules are

inconsistently applied and no one has been disciplined for using profanity or the tone and tenor of

their communication and Crews should not be the first.

The Union asserts credible evidence supports no finding of guilt on the charges and the

acts as proven do not rise to the level of misconduct. Crews is one of the hardest working and most

productive members of the Department. The City ignored signs of her anxiety and job related

stress. She worked hundreds of hours of overtime and it took a toll on her mental health. The IPD

knew of her anxiety and stress and did nothing. Civil Service Law § 72 (5) lets a governmental

employer require a mental health evaluation. Acting Chief Joly recommended the City order a

CSL §72 exam. The City declined and now instead of helping Crews, the City seeks to punish her.

OPINION

Under the parties’ agreement, no permanently appointed employee shall be disciplined,

discharged, reduced in rank or compensation without just cause as a penalty for misconduct or

incompetence. The Department shall bear the burden of proving that the employee is guilty of the

charges alleged. In non-discharge cases, the Department must establish the employee’s guilt by a

preponderance of the evidence. In discharge cases, the Department must establish the employee’s

guilt by clear and convincing evidence. In reaching a decision after a disciplinary hearing, the

arbitrator must make a specific finding as to each separate allegation or specification in the

Notice of Discipline. The decision must state whether the City met its burden of proof on each

separate specification of the charges. Based on the parties’ contractual standards, I have conducted

a de novo review of the evidence.

Just cause means convincing the arbitrator that the Grievant engaged in the charged

44
misconduct and if so, determining an appropriate penalty. An essential element of just cause is

notice and an opportunity to be heard. Employees are entitled to notice that the charged conduct

would violate Department rules and lead to discipline. The Department may enforce its policies,

provided the policy is clear, well-known, and consistently applied. Due process requires Crews

receive notice that the charged conduct would violate Department rules and lead to discipline. I

find much of the charged misconduct centers on technical violations of unenforced rules. The IPD

can change its policies and practices with proper notice, training and consistent enforcement.

Many charges involved Crews’ use of language. Defining harsh, profane, and insolent

language is a matter of interpretation. As Justice Holmes stated one hundred years ago “A word is

not a crystal transparent and unchanged; a word is the skin of a living thought and may vary in

color and in context according to the circumstances and time in which it is used.” Towne v. Eisner,

245 U.S. 418, (1918).

The first set of findings I must make under the parties agreement addresses whether the

City and IPD have established the charges and Specifications by a fair preponderance of the

credible evidence. The credible evidence must convince me it is more likely than not Grievant

engaged in the charged misconduct. If the City meets this burden, I will address the penalty. Under

the parties’ CBA, the decision must state whether the City met its burden of proof on each separate

specification of the charges. I find the City has not met its burden of proof and has not convinced

me it is more likely than not Grievant is guilty of Charges 1, 2, 3, 4, and 5 and Specifications 1,

2, 3, 4, 5, 6, 7, 8, 9, 10, and 11. The City has not established just cause for disciplinary action. The

Charges and the Specifications are dismissed in their entirety.

Five charges allege violations of sections of the IPD rules and regulations. Eleven

Specifications support the allegations of misconduct. Charge 1 alleges a violation of rule 1.1

45
“Obedience to Laws” and is supported by Specification 1. Charge 2 alleges a violation of rule 1.5

“insubordination” and Specification 5 supports this allegation. Charge 3 alleges violations of rule

2.12 “Courteous” and Specifications 2, 4, 6, 8, and 11 support this claim. Charge 4 alleges a

violation of rule 2.14 “assistance to citizens” and is supported by Specification 10. Last, Charge 5

alleges violations of rule 4.1 “Conduct” “discourtesy” and is supported by Specifications 3, 7, and

9.

Charge 1 alleges a violation of rule and regulations 1.1. Specification 1 concerns the arrest

of Ashby for violating Section 65-c of the ABC Law. In the Officer’s Report for Incident under

offenses is “90 G”. The accusatory box on the appearance ticket is checked for underage possession

of Alcohol ABC 65-c, Violation at Eddy St. with intent to consume such beverage. In the Ithaca

City Police Department Officer Report for Incident I 18-07444 90 G Liquor Law Violation, Crews’

narrative indicates she issued Ashby an appearance ticket for underage possession of alcohol. Sgt.

Amaro in his supplement statement wrote, “She acted in an intoxicated and unreasonable manner

throughout our time together.”

The facts are undisputed, Crews was dispatched to an address on Linden Ave in response

to a report of an intoxicated person. Upon arriving, individuals present informed Crews that three

Ithaca College students were there uninvited. Crews physically pushed Ashby out of the bathroom.

Crews received information from several residents at the scene that Ashby was creating a

disturbance at that location, and they wanted her to leave. Ashby tried to interfere with police and

EMS. Ashby left the location on foot. Crews was concerned that Ashby may have been too

intoxicated to walk back to Ithaca College, so she checked the area for Ashby and located her near

the intersection of E. Seneca St. and Eddy St. (C.3).

Lt. Joly investigated the incident and wrote, “In summary, I believe Officer Crews had

46
probable cause to make an arrest for possession of an open container of Alcohol in public, as well

as underage possession of alcohol.” (C.3 p.7). He also writes, “Although using force to provide a

courtesy ride home is not within policy or training, there was sufficient cause to make the arrest

for the above noted violations.” The violations noted were for “possession of an open container of

alcohol in public, as well as the underage possession of alcohol.” Joly concludes, “Although I view

the actions of Officer Crews to be legally sound, I believe that there is a need for additional follow

up training.”

In the supplement section, DC Monticello wrote, “one matter that needs to be addressed is

Officer Crews deciding to make a custodial arrest on an ABC Violation for Underage Possession.”

He states, “Based upon the writer’s past training and experience, the writer is aware that ABC

Violations are an Appearance Ticket Only.” “The writer took a look at IPD Policies dating back

to the 2012 Policies (see attachment 4) and the policies from 2015-2018 (see attachment 3). The

writer did not see any written policies pertaining to ABC violation.” Monticello recommended that

future policies address ABC violation arrests.

Both Joly and Monticello made no findings that Crews had violated IPD policy for ABC

arrests. Neither supervisor recommended Crews to be disciplined. I find the City and IPD did not

prove probable cause for bringing this charge. Monticello and Joly reviewed the BWC footage,

the paperwork and the Department’s ABC policies. Neither supervisor recommended discipline,

and both considered Crews actions reasonable and the IPD did not have a policy about ABC

arrests. Crews acted to protect Ashby from harm. She used her discretion to issue Ashby an

appearance ticket for violating ABC § 65-c instead of other more serious infractions or violations

including disorderly conduct or resisting arrest. I find Crews not guilty of Charge 1 Specification

1.

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 Charge 2 alleges a violation of rule 1.5 “insubordination” and is supported by Specification

5. Insubordination means willfully disobeying a lawful order or directive. Specification 5

references rule 1.5 and includes “insolent or abusive language or actions toward any commanding

officer.” It alleges Crews was insubordinate on June 27, 2018, by twice describing directions from

your commanding officer John Joly as “Bullshit” and otherwise acting in an insolent and abusive

manner towards your commanding officer and the direction received therefrom.” Insolent means

showing a rude and arrogant lack of respect; or being impolite and disrespectful. In common

language it means acting like a jerk to someone you should respect. C.2 in the IA folder, pages 4-

5 records Lt. Joly’s account on June 27, 2018, of the incident. He writes,

She said something to the effect of this is bullshit and you know it. I
continued down the stairs and she then said that if I insisted she do it she
was requesting personal time or Sick time and she will go home. I said ok,
and continued to walk past her.

Joly’s Officer Report for Incident ends with the notation “ This case number was started as

an informational report to document Officer Crew’s (sic) behavior and refusal to complete her

duties as assigned.” (C.2).

Crews secretly tape recorded the incident and disputes using the term “bullshit.” Otherwise,

Crews did not dispute the allegation except for the characterization of it being insubordination. By

June 27, 2018, Crews had sued the Department for gender/sex discrimination for her having to

perform the jailer duties on female prisoners. Her tone, demeanor, and language were insolent

toward Joly. DuPay considered her interactions with him to be minor. The Department presented

no evidence that the Department disciplined any police officer for using profanity or insolent

language or behavior. Instead, many witnesses testified that rough and coarse language was the

norm in policing and in the IPD specifically.

The report of Crews insubordination states, “She didn’t leave, and I then told her she was

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being insubordinate. She disagreed and left.” I find Crews followed Joly’s directive to leave and

was not insubordinate. While Joly could have insisted Crews obey his lawful directive to perform

her jailer duties, he gave Crews the option of leaving. The City had probable cause to issue the

NOD, her swearing at DuPay was inappropriate but he did not complain and considered it minor.

The City did not establish Specification 5 at the hearing. Crews swore and acted insolent, but she

obeyed Joly’s directive to leave.

The Union made a prima facie case of disparate treatment and showed that IPD treats

Crews differently than its treats other officers for rule enforcement and discipline. IPD did not

prove it enforces rule 1.5 by disciplining officers for swearing in the presence of supervisors. To

discipline Crews for violating IPD’s rules and regulations the Department must prove the rule or

regulation is clear, well-known, and uniformly applied. Staff must be trained on the policy and

staff must know that violation of the rule or regulation would lead to discipline.

Charge 3 alleges a violation of Rule 2.12 and is supported by Specifications 2, 4, 6, 8 and

11. Rule 2.12 states “COURTESY.”

Employees shall perform their duties in an efficient, courteous, and orderly manner,
using patience and good judgment at all times. They shall not use harsh, profane, or
insolent language. They shall be courteous and civil in their dealing with the public
and other employees.

Specification 2 relates to the Ashby incident on April 22, 2018. Crews admits and BWC

video confirms she used the words “if you don’t want to do it the easy way, you’ll do it my way”

“It’s on my chest recording you, you’re acting like a little animal,” and “shut your mouth little girl,

I’ve had enough of your shit tonight, you’re not in control.” The language is harsh, and “shit” is

generally considered profane. The language is also routinely used in policing. Harsh and profane

language is sometimes needed to control the situation. It is part of how officers exert command

and communicate effectively with arrestees. Ashby was drunk and unreasonable. Crews did not

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demean her. The BWC video captures the event and Joly and Monticello reviewed the paperwork.

Neither objected to Crews’ language, tone or demeanor. Joly recommended training Crews in

dealing with large parties, confronting Ashby and defensive tactics. He viewed the force Crews

used to be reasonable and her actions legally sound.

I find the Department lacked probable cause to discipline Crews and just cause does not

exist to discipline her. Specification 2 is unproven and is dismissed. Specification 4 alleges Crews

violated rule 2.12 on June 27, 2018, when she twice told Joly his directive was “bullshit” or words

to that effect and when she told DuPay to “go fuck yourself.”

I find Crews used harsh, and profane language toward DuPay. She was also insolent toward

Joly. While her behavior violates rule 2.12, there is no evidence of the Department imposing

discipline for its violation. Coarse language is commonplace within the Department. If the

Department seeks to enforce rule 2.12, it may do so provided its members are put on notice that

its violation will result in discipline, and uniformly enforce the rule with discipline. Also, because

of the vagueness in the terms “profane” “harsh” and “insolent” training may be needed to define

the terms in real circumstances. Notice, consistent enforcement, and training are required if the

Department wants to punish officers for cursing, swearing or using profanity while on duty.

Specification 6 alleges Crews violated rule 2.12 on July 31, 2018, during an interaction

with Pettaway. He believed she exhibited harassing behavior. BWC records the encounter. Crews

told Pettaway to “start obeying the law, much easier.” Crews issued Pettaway a parking ticket for

parking in a prohibited area. Lt. Scott Garin received Pettaway’s complaint and interviewed Crews.

He turned the investigation over to Joly. Joly reviewed BWC video and saw Pettaway’s vehicle

illegally parked, half in a legal parking space and half out. Joly interprets Crews’ behavior as

confrontational and rude to Pettaway. “She is authoritative and unwavering in her intent to issue

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the parking ticket.” He doesn’t recommend discipline yet; he writes under training and policy “I

found no policy issues and have no recommendation regarding charges.” Joly recommends training

“directly related to effective communication and verbal de-escalation. This is a common

reoccurring theme.”

In Joly’s opinion Crews “would benefit greatly from training focused on developing better

communication and de-escalation skills.” He recommended the violation of rules 2.12 and 4.1 be

sustained and recommended she forfeit forty (40) hours of accrual time, go to verbal judo training,

tactical communication skills, Dr. Gilmartin’s training on Emotional Survival for Law

Enforcement and that she be scheduled for eight (8) hours of reality Base Training, with scenarios

specifically addressing traffic stops, communication skills, verbal de-escalation, and MHL 9.41

arrests. Last, Joly recommends Crews be sent for a fitness for duty Mental Health evaluation.

Monticello reviewed Lt. Garin’s and Joly’s reports. He recommended anger management training.

He did not recommend discipline.

I have reviewed the BWC video, and the investigation packet C.4, C.4 A, and C.4 B, Crews

was assertive, harsh, and unwavering. She’s gruff but her behavior is in line with commonplace

police practices. Once the Union proved disparate treatment, the Department did not identify other

officers disciplined for the same or similar behavior. There is a rule, the rule is discussed, and

Crews is on notice of the rule, but the rule is not uniformly enforced, nor does the Department

discipline officers for discourtesy or using harsh or profane language. I find the Department had

probable cause to charge Crews but did not establish Specification 6 by a preponderance of the

credible evidence. The Department does not have just cause to impose discipline. Much has been

made of Crews’ record of many more complaints than other officers. She also works more hours

and writes more tickets and violations than most officers. Joly’s recommendations of training and

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a mental health evaluation are appropriate means of addressing the root causes of Crews’ behavior

which may be stress related to overtime or job duties.

As for Specification 8, the Bailey incident, the Department alleges in Charge 3 Crews

violated rule 2.12 on August 24, 2018, when she pulled over Bailey on Linden Ave. Bailey

complained about the encounter and described Crews’ behavior as threatening. BWC video

captures the incident and Crews says, “I suggest you learn to play by the rules around here” and

“John Bailey, you’re on my radar.” The City alleges Crews failed to, “be courteous and civil in

dealing with the public.” Bailey complained to Chief Pete Tyler who referred the complaint to DC

Monticello. He asked Joly to investigate. Joly reports Crews’ behavior is rude, condescending,

abrasive, and argumentative.”

He also chastises the IPD stating, “there have been numerous well documented examples

sent up to the Chief’s office in the form of Internal Affairs investigations, yet she has not been

held accountable.” (C.4 p. 4 of 5). He substantiated the violations of 2.12 and 4.1 and

recommended forfeiture of forty (40) hours and a mental health evaluation. Monticello agreed with

Joly’s assessment. Neither recommended discipline.

I find the IPD did not have probable cause to file Specification 8. The IPD did not convince

me Crews’ actions constitute misconduct. Crews’ actions while coarse, abrasive and aggressive do

not violate IPD’s policing standards, no other officer has been disciplined for the same or similar

behavior. Crews’ actions with Bailey are in line with the Department’s policing standards and

practices. She used proper discretion in not issuing Bailey a ticket. The Department may change

enforcement of rule 2.12 by uniformly applying the rule to all officers. I find Crews not guilty of

Charge 3, Specification 8.

The City alleges in Charge 3, Specification 11 that Crews violated rule 2.12 on October

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11, 2018, when she responded to a welfare check on J.T. a college student. Crews said to the

dispatcher that J.T. was “reporting 3-4 Klonopin” but did not say J.T. had overdosed. When

Dispatcher Gonzales questions Crews’ meaning, Crews then said, “that’s what 3-4 Klonopin

means.” The City interpreted her statement to be sarcastic, condescending and argumentative.

The BWC video captures the exchange. I find Crews to be caring and focused on J.T.’s

well-being. Her attention was on driving and keeping J.T. awake and responsive. The IA folder

(C.6) reflects neither J.T. nor Dispatcher Gonzales complained about Crews. The complaint came

from Sgt. Banfield. He made a litany of complaints about the call and the fact Crews did not call

EMS. Joly investigated but, “was unable to locate a Policy or Written directive addressing when a

9.41 subject could be transported by IPD.” He substantiated the violation of rule 2.12 in Crews’

conversation with Gonzales.

I disagree. Crews was not rude or discourteous with Gonzales. She was responding to an

emergency and trying to get J.T. to the hospital quickly and wanted medical staff to be prepared

for his arrival. She is direct, forceful and assertive while being caring and lighthearted with J.T.

The City did not have probable cause to charge Crews. Banfield’s report/complaint should have

been suspect because of the long-standing irritation between Banfield and Crews. His complaint

was fashioned to provoke IPD to discipline Crews. Crews is not guilty of Charge 3 Specification

11. The City did not prove she violated rule 2.12. The City did not establish just cause for

discipline.

The City’s Charge 4, Specification 10 alleges Crews violated rule 2.14 “assistance to

citizens on October 11, 2018, when she failed to respond to a request from Mike Taub for a phone

call. Crews did not return Taub’s call because his son J.T. was an adult and she had HIPPA

concerns. When dispatch told her that Taub wanted an update, Crews said she was “tied up.” BWC

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captures video of the incident. The City alleges Mike Taub requested “information and assistance”

from Crews asking for a telephone call to update him on the welfare of his son.

The IPD charges Crews with violating rule 2.14 because even if Crews believed HIPPA

prevented any medical disclosures, she could have returned the call. Rule 2.14 requires officers to

“render all possible service to any citizen seeking information on assistance.” BWC and instant

messages capture the incident. Neither Mike Taub nor J.T. complains. Banfield made the

complaint. Joly investigated and had a “larger concern with her decision to transport a subject who

had admittedly attempted to overdose by taking too many prescription drugs.” (C.6, p.2). Joly

writes in his report, “There was no reason why she could not have contacted the father as requested.

If nothing else simply as a courtesy to the father to let him know his son is alright and at the

hospital for additional help.” Joly could not find a policy or written directive discussing when a

Mental Health Law § 9.41 subject could be transported by IPD. He found evidence of a violation

of rules 2.12 and 4.1, “conduct that brings discredit upon the Department” and “courtesy.”

At the November 28, 2018, hearing Crews answered that she knew Mike Taub wanted a

phone call but believed J.T. was on the phone with his parents. In the Electronic Communications

Report, Crews states “I was on speaker phone with kid and mom while dad was demanding I call

him.” She also believes HIPPA prevented discussing J.T.’s medical information. Crews’

understanding of rule 2.14 was it required her to render help to the citizen who needed it most.

(C.6 p.14). IA substantiated the violation of rules 2.12., 2.14, and 4.1.

Dispatch Supervisor for Tompkins County David Cotterill in his statement does not

consider Crews’ transmission to be appropriate radio protocol. He describes her communication

as sarcasm, condescending tones and argumentative. However, I find the City lacked probable

cause to charge Crews with violating rules 2.14. Joly, in reviewing the radio and BWC video, does

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not refer to a rule 2.14 violation. Mike Taub the person requesting a call, does not complain about

Crews’ actions and the dispatcher does not complain. The complaint came from Banfield, which

makes it automatically suspect given his history of antagonizing Crews.

BWC footage shows Crews in constant communication with Dispatcher Gonzales and with

J.T. who is on the phone the entire time with a parent. Crews is attentive and caring. Failing to

stop what she’s doing and return a call to another parent is understandable. Crews’ attention is on

driving and keeping J.T. alert. Failing to return a call to Mike Taub is so minor Joly doesn’t even

mention a violation of rule 2.14. The ride took 15 minutes, the fact Crews didn’t call Mike Taub

during those 15 minutes does not violate rule 2.14 and Charge 4, Specification 10 is dismissed in

its entirety.

The City in Charge 5, Specifications 3, 7, and 9 alleges Crews violates rule 4.1 by engaging

in conduct which brings discredit upon the Department. Specification 3 is based on the April 22,

2018, incident with Ashby and alleges Crews affected an unnecessary forcible arrest of Ashby and

after doing so, used demeaning and profane language towards Ashby. This resulted in Ashby filing

a Notice of Claim against the City. Sergeant Amaro was on the scene during the custodial arrest

of Ashby and testified the custodial arrest made sense. (T. 836). If Crews’ arrest of Ashby was

improper, as her commanding officer, Sgt. Amaro would have intervened to prevent the arrest. He

did not and believed it was justified. Joly investigated and reviewed the BWC video, he believed

her use of force was reasonable, until Ashby filed her Notice of Claim.

Until July 24, 2018, the Department treated the incident as routine. Filing a notice of claim

does not prove wrongdoing, it is a necessary legal maneuver to preserve a person’s right to sue.

Five years later, Ashby has never sued. The City established no notoriety associated with the

incident and there was no public protest about the arrest. I find the City did not establish Crews

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actions “discredited” the Department. The City did not have probable cause to charge Crews, and

did not convince me she violated rule 4.1. Just cause does not exist to discipline her.

Charge 5, Specification 7 relates to the July 31, 2018, encounter with Pettaway and alleges

Crews violated rule 4.1. This behavior is Crews’ statement to Pettaway he needed to “start obeying

the law, much easier.” Other than Pettaway’s complaining, the BWC video records routine

policing. Crews is a productive officer and leads the Department in issuing parking tickets. This

means she issues tickets to violators and does her job. Pettaway did not like getting a parking ticket

nor did he like the way Crews spoke to him in front of his son. Complaints about parking tickets

are not unusual nor do they discredit a police department. Issuing parking tickets are part of the

job. Charge 5, Specification 7 is dismissed in its entirety. The City did not have probable cause to

charge Crews with violating rule 4.1 and did not convince me she is guilty of misconduct. There

is no just cause to discipline her.

The City in Charge 5, Specification 9 alleges Crews violated rule 4.1 on August 24, 2018,

when she failed to be courteous and civil to Bailey causing him to complain of threatening behavior

to the Chief of Police. The Specification states [Bailey] (sic) wrote, “I know this behavior is not in

keeping with your leadership and IPD’s normal interaction with the public.” Crews used her

discretion and did not issue Bailey a ticket for reckless driving. Crews’ actions do not justify

Bailey’s complaint. BWC video captures the encounter. Crews is direct, assertive, and

commanding. Bailey complained to Tyler about not getting a ticket. I’m unsure how not giving

Bailey a ticket and counseling him to follow the laws brings discredit upon the Department. One

can only imagine how upset Bailey would have been had she issued a ticket.

Bailey complained to Chief Tyler. Tyler referred the matter to DC Monticello who assigned

the investigation to Joly. Joly reviewed BWC footage. He has several areas of concern, one is that

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Crews slams the vehicle door, another is that Crews first asks for license, registration, and

insurance card, which he determined is contrary to training. Joly believes training requires Crews

to state her name and reason for the stop first. Last, Joly finds Bailey’s letter reaffirming the other

complaints of Crews’ demeanor, tone and behavior. He concludes Crews violated rules 2.12 and

4.1. He recommends training, losing accrual time, and a mental health evaluation. In reading Joly’s

report, clearly IPD’s lack of action is frustrating him. He wants Crews trained and to undergo a

mental health evaluation. Instead the IPD and City disciplined her, which is their right.

I find IPD had probable cause to charge Crews with a violation of 4.1. Joly made a

reasonable assessment that 4.1 had been violated and Crews had done so. The City has not

convinced me Crews is guilty of misconduct and that it has just cause to discipline her. I find her

not guilty of Charge 5, Specification 9.

The City makes the argument Crews’ discourteous behavior and use of profanity is far

more egregious than that of other officers. The City refers to receiving five complaints in five

months as triggering the NOD. Those complaints were from Ashby, Joly, Pettaway, Bailey, and

Banfield. Of those five, Ashby did not file a complaint, she filed a notice of claim, a precursor to

suing. Ashby never sued and did not testify at the disciplinary arbitration. The June 27, 2018,

incident with Joly did not result in Joly filing a complaint. He completed an informational report

to document Crews’ behavior and her refusal to complete her duties as assigned. Joly could have

demanded Crews stay at the station and perform her duties, he did not. Joly testified that there was

a difference when officers swore in public, the June 27 encounter was out of view of the public.

The third complaint came from Pettaway who received a parking ticket for parking illegally. The

fourth complaint came from Bailey, who complained about receiving a verbal warning instead of

a ticket for reckless driving. The last complaint came from Banfield, which should have raised a

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red flag for IPD. In actuality the only complaints were from Pettaway and Bailey, one for a

properly issued parking ticket and the other for a verbal warning. There is no just cause to

discipline a twenty-one year veteran officer for Pettaway’s and Bailey’s bogus complaints.

I find there is insufficient proof to establish Charge 1. I find there is insufficient proof to

establish Charge 2. I find there is insufficient proof to establish Charge 3. I find there is insufficient

proof to establish Charge 4. I find there is insufficient proof to establish Charge 5.

I find there is insufficient proof to establish Specification 1. I find there is insufficient

proof to establish Specification 2. I find there is insufficient proof to establish Specification 3. I

find there is insufficient proof to establish Specification 4. I find there is insufficient proof to

establish Specification 5. I find there is insufficient proof to establish Specification 6. I find there

is insufficient proof to establish Specification 7. I find there is insufficient proof to establish

Specification 8. I find there is insufficient proof to establish Specification 9. I find there is

insufficient proof to establish Specification 10. I find there is insufficient proof to establish

Specification 11. I find Grievant not guilty of the Charges and Specifications because credible

evidence does not support the allegations and just cause does not exist to impose discipline.

Accordingly, and based on the foregoing, the Arbitrator finds and makes the following:

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 AWARD

1. Grievant is not guilty of Charges 1, 2, 3, 4, and 5 as stated in the January 10, 2019,
Notice of Discipline.
2. Grievant is not guilty of Specifications 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11.
3. The Charges and Specifications are dismissed in their entirety.

Dated: March 30, 2023

Albany, New York

Timothy S. Taylor, Esq.

ARBITRATOR

AFFIRMATION

STATE OF NEW YORK)

COUNTY OF ALBANY) ss.:

I, Timothy S. Taylor, do hereby affirm upon my oath as Arbitrator that I am the individual
described herein and who executed this instrument, which is my Award.

Dated: March 30, 2023

Albany, New York

Timothy S. Taylor, Esq.

ARBITRATOR

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