Arbitrator: Second officer unfairly suspended for use of racial slur, must be ‘made whole’

Updated: Dec. 9, 2019 at 10:02 PM EST
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CINCINNATI (FOX19) - A Cincinnati police officer disciplined for using the n-word during an arrest last year must have his suspension reduced to a written warning and be ‘made whole’ for the income he lost during four months of desk duty, an arbitrator ruled Monday.

Officer Dennis Barnette is a 16-year veteran of the police force and, according to court documents, had no prior discipline on his record.

His police powers were stripped and he was restricted to desk duty on Dec. 26, 2018 after police department investigators reviewed body cam footage of Barnette using the slur while arresting a woman outside Brownstone Nightclub in Roselawn.

Previously | Cincinnati police officer under investigation for using 'N' word during arrest

The investigators said Barnette violated a Cincinnati Police regulation which states, “Members of the Department shall not express, verbally or in writing, any prejudice or offensive comments concerning race, religion, national origin, lifestyle, gender, or similar personal characteristics."

Barnette ultimately received a 56-hour, or seven-day, suspension. His police powers would remain stripped for four months.

Barnette estimated his lost wages to be $14,676.

In his decision, the arbitrator notes the same offense—using a prejudicial slur—had earned less severe punishments for other officers in several prior incidents, the most noteworthy one being that of Officer Donte Hill, who in September 2018 was given only a written reprimand for using the n-word on duty.

Hill is an African-American officer, while Barnette is Caucasian.

Previously | Officers who said “n-word” sue Cincinnati police chief, city manager, allege unfair punishment

In its case before the arbitrator, the city said these comparisons were ‘red herrings’ because they weren’t similar to Barnette’s situation.

Moreover, the city conceded Hill used the n-word just three months before Barnette, but claimed while Hill was initially given a lower penalty—a written warning—his punishment was ultimately changed to the same 56-hour suspension as Barnett, with the city saying it simply made a mistake in the first place.

Therein lay the problem, from Hill’s point of view. He took the city to arbitration over his suspension the same as Barnette did. On Dec. 6, the arbitrator in that case overturned the suspension and ordered the city to repay him, reasoning Hill could not be punished retroactively a second time for the same offense.

“The city,” wrote that arbitrator, “must live with the error.”

Previously | Arbitrator: Suspension overturned for cop who used racial slur, city must pay

In this case, the police union, arguing on Barnette’s behalf, said the city lacked ‘just cause’ in punishing Barnette because it had been too inconsistent in doling out punishments in similar past cases—most notably Hill’s.

The arbitrator agreed the punishments were ‘starkly different’ and that the department’s disciplinary standards were not evenly or consistently applied. He conceded some disciplinary action was warranted, but that the one given—the 56-hour suspension—was excessive.

The cases sparked controversy immediately after they surfaced in 2018, with some members of city council calling for the officer’s jobs.

“In both cases it wasn’t as malicious as I think the political reaction was, and unfortunately because of that reaction I think that we saw that some of our members were absolutely made the scapegoats," FOP President Sgt. Dan Hils explained. "What they were responsible for equaled what I think the arbitrators decided on, which was a reasonable punishment, and then, you know, getting them back to work.”

Cincinnati police declined comment Monday night until they have a chance to review the decision, a department spokesman said.

“Officers Hill and Barnette are pleased with the decisions rendered in their labor arbitrations," attorney Zach Gottesman, who argued both cases, said. "At this point, for both officers there are a few more steps required to conclude the arbitration process and then the proceedings in the U.S. District Court will resume. Fortunately, the arbitration decisions answer many of the questions raised in the federal proceedings, so we should be able to resolve those cases relatively quickly.”

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