Arbitrator upholds officer’s firing


By Sheryl Roadcap - sroadcap@sidneydailynews.com



SIDNEY — The discharge of former Sidney Police Sgt. Joshua Divens was upheld by an independent arbitrator on Dec. 21.

Divens was dismissed on May 17, 2019, for a history of poor performance and examples of non-feasance and acts of misconduct, including falsification of his daily log.

Arbitrator David J. Millstone denied Divens’ grievance filed on May 21, 2019, of his termination. The grievance stated Divens was terminated without just cause, which violates the collective bargaining agreement between the Fraternal Order of Police Ohio Labor Council Inc., which is the union representing him, and the city of Sidney, and the city failed to follow progressive discipline.

The union also said he was singled out for discharge by the city because of a tense relationship between Divens’ new wife and the wife of the Sidney Police chief, who both work at the same place of employment. The arbitrator ruled the grievant failed to meet his burden to establish there was bias against him that affected the decision to terminate his employment.

“The city of Sidney customarily refrains from public comment in connection with matters involving the discipline and discharge of its employees, however, due to the recent dissemination of misinformation relating to the discharge of Joshua Divens, former Sidney Police sergeant,” City Manager Mark Cundiff said in a press release, “the following information is being provided to the public for its consideration and understanding:

• On Sept. 26, 2019, an arbitration hearing was conducted pursuant to a grievance filed by Divens, with the issue before the arbitrator being whether the city of Sidney had just cause to terminate the employment of Divens, and if not, what would be the remedy.

• On Dec. 21, 2019, the arbitrator’s decision and award was delivered to the city.

• The arbitrator held that Divens’ discharge was justified, and, concluded as follows:

‘The evidence demonstrates Grievant engaged in serious misconduct, including intentional falsification of his activity log and telephone log. Dishonesty is sufficient to justify discharge without following other steps in the progressive discipline process. There is no sufficient evidence of bias and no sufficient mitigating factors to offset the decision to discharge grievant. The grievance is denied.’”

The arbitrator’s report indicates Divens did not challenge the city’s claim he made or received a total of 89 personal phone calls from his wife’s number during 33 shifts, and he acknowledged it to be excessive. It also notes he was at his residence 14 out of 17 work shifts, totaling at least nine hours. When providing an explanation for the calls, Divens said his wife had two extensive surgeries and one minor procedure, all of which required assistance. He also acknowledged he was probably at home “more than others” because his wife was immobilized with legitimate health issues.

The city also said Divens failed to show up for a missing juvenile call. The report said the city’s claim is undisputed by an officer on the scene who confirmed he did not show up. Millstone’s report also found that although the grievant denies falsifying his performance log, the evidence is to the contrary.

“The phone logs were falsified by virtue of the absence of recording a number of (Divens’) personal calls. He was required to enter all personal calls. The absence of information on a phone log is as much a falsification as is making an affirmative false statement. More significantly, listing time while at his personal residence as being on patrol is falsification of his daily activity log. …” Millstone wrote, “The City has established wrongdoing. Dishonesty is a clear basis for discharge. …”

Divens was first hired as an officer, Nov. 17, 2003. He was promoted to sergeant, Dec. 9, 2012.

The full content of the arbitrator’s decision and award can be found on the city of Sidney’s web page at https://www.sidneyoh.com/DocumentCenter/View/1002/FOP-Sidney-Decision—-Divens-PDF

By Sheryl Roadcap

sroadcap@sidneydailynews.com

Reach the writer at 937-538-4823.

Reach the writer at 937-538-4823.