A police officer in Painesville, Ohio, was fired after being accused of having sex while on duty. The officer filed a grievance. An arbitrator concluded that he should be reinstated, because the tryst occurred while the officer was on a break.
"My holding is due to the lack of proof that this activity took him out of service more than a nap, playing a video game, working a crossword puzzle or standing in line at the bank or store would have," arbitrator Dennis E. Minni wrote in his ruling.
"It was his break time, and he testified that he did not shut his radio off--just removed it so as not to risk unintentional activation of it.
"Since he could have received a call for assistance, the time it would take to respond has not been shown to be any greater than it would have been for many other activities."
The News-Herald newspaper reports that Patrolman Stuart W. Underwood was terminated May 8, 2004, for a series of alleged misdeeds that, besides the break time encounter, included mishandling his dog in the K-9 unit and showing the videotape of an arrest to other people.
In his ruling, Minni said the woman who told authorities about having sex with Underwood while he was on duty could not be trusted because she had an ax to grind. Specifically, he said, the woman--described as his mistress--was upset because Underwood would not support their child. The woman also told authorities that Underwood had found a new girlfriend.
As for the videotape allegation, Underwood claimed he had been given permission to take the tape, and Minni said there was no evidence of Underwood being told otherwise. And while Underwood should have been disciplined for mishandling his dog, none of his actions on that score warranted termination either, Minni said.
Minni ruled Underwood should be reinstated, receive back pay, and have the allegations permanently stricken from his personnel file. City officials would not comment on the ruling for the News-Herald, except to say they were reviewing it.