The City of DeLand has reinstated former DeLand Police Officer Johan “Joey” Mulero, after an arbitrator determined that the city failed to properly investigate after it was alleged Mulero had used excessive force with a citizen.
Read the City of DeLand’s official statement HERE.
It’s a victory for Mulero, who was fired Dec. 3, 2018, after a year-old video surfaced of Mulero’s 2017 encounter with a man on West New York Avenue. In the video, Mulero told the civilian to “get out of my space” and arrested him after the civilian suggested Mulero was acting like a “f—— Nazi.”
Police had been called to the scene because the man was yelling at cars and might have been too close to a power line that had come down in a storm.
The charge against Allan Kidd, of resisting arrest without violence, was dropped by the State Attorney’s Office, and Kidd subsequently sued the City of DeLand. The suit was settled out of court in 2018 for an undisclosed sum.
According to the arbitrator, Mulero’s behavior justified the firing, but the Police Department’s Internal Affairs investigation was flawed enough to make it not fair.
“The type of conduct that he displayed in this arrest was reprehensible,” DeLand Police Chief Jason Umberger testified in July 2020, during the first of two arbitration hearings.
“I didn’t think it was recoverable, that I could, you know, put an officer back on the street after he had engaged in that type of behavior,” Umberger testified.
The video of the encounter between Mulero and Kidd had become a hot item on social media.
“Our community would never trust him again,” Umberger said in his testimony. “In my mind and, in the other commanders’ minds, it disqualified him from public service, from police service.”
Mulero, represented by the International Union of Police Associations, immediately contested his dismissal, triggering a grievance and arbitration process that, more than two years later, ended March 12 with the decision by the appointed arbitrator, Christopher Shulman, that Mulero could rejoin the police force.
Shulman ordered the City of DeLand to retroactively reinstate Mulero from the date he was fired. Shulman also ruled that Mulero will not receive back pay, and recommended that he receive substantial discipline and additional training.
“Accordingly, I conclude that the City did have just cause to discipline [Mulero] but not to discharge him … Having said that, [Mulero] engaged in extremely serious misconduct and should receive similarly serious discipline, substantial additional training, a last chance, and removal from Field Training Officer status,” Shulman’s decision concludes.
The case highlights the challenges of training on the job in the DeLand Police Department. Not only was the police chief, at the time, only three months on the job, then-Sgt. Juan Millan was also in training for his new role in conducting Internal Affairs investigations.
Further, Mulero had been training a newer officer and said he might have been more aggressive than usual during the encounter with Kidd to set an example for a rookie who had been deemed too passive. Mulero, an officer with the Police Department since 2013, also said during arbitration that the way he treated Kidd was the way he had been trained to behave.
The flaws in the IA investigation include failure to preserve the bodycam footage of IA interviews, failure to verify the truthfulness of the report in the particular language set by state statute, and failure to notify Mulero when two additional policy violations were added to the investigation.
The most problematic of all: a substantive change in different versions of the IA report, as Millan received input from his supervisor, Deputy Chief Gary Batten.
IA investigations, and their findings, are supposed to be made by a sole investigator, without substantial input from superiors.
The change made after Batten reviewed Millan’s work expanded the scope of Mulero’s policy infractions substantially, which may have been the “tipping point that led to discharge as the discipline imposed,” the arbitrator wrote.
He added, “Sgt. Millan may have been brand new and untrained in IA procedures, but the City was required to make sure the investigation was conducted properly — but did not.”
Shulman’s assessment continued, “I do find that discharge would, ordinarily, be the appropriate level of discipline for an officer acting in such a willfully aggressive way toward a member of the public without proper cause. However, I am dismayed by the DeLand Police Department’s IA’s failure to comply with the Law Enforcement Officers’ Bill of Rights.”
The flawed IA was enough for Shulman to find that the city had not proved a fair investigation was held, and therefore did not prove the punishment fit the crime.
The ruling requiring Mulero’s reinstatement as a police officer is effective immediately.
This breaking news story is ongoing and will be updated.
Arbitration: Arbitration is not unlike a court case. Both sides present arguments, witnesses and evidence. The arbitrator, like a judge, is a neutral third party who makes a binding decision based on the facts presented. Arbitration is an alternative to litigation through a public court system, and is often used to resolve labor disputes. In a discipline case, the burden of proof is on the employer; in this case, the City of DeLand.
Just-cause standard: In collective bargaining agreements — like that between the City of DeLand and the International Union of Police Associations — to fire an employee, the employer must have a clear reason, backed up by an investigation. Although the City of DeLand argued that just cause was not applicable in this case, the arbitrator disagreed, and said the city needed to meet these seven standards to fire the police officer:
- The employee was forewarned.
- The employer rules were reasonable.
- There was an investigation before disciplinary action.
- The investigation was fair.
- There is substantial proof of the violation.
- There was no discrimination.
- The punishment fit the crime.