The criminal charges stemmed from a Feb. 17, 1998, incident at a Wendy’s restaurant, where McDonald pepper-sprayed a clerk during an arrest after he concluded she had short-changed him at the carryout window. No charges were filed against the clerk. That month, McDonald was ordered to an internal misconduct hearing and suspended with pay.

On March 18, 1998, McDonald was charged with assault, and the city stopped his pay without a hearing.

A visiting municipal judge acquitted McDonald in June 1998.

After a police internal hearing, then-Chief Ronald Lowe ordered McDonald terminated July 24, 1998.

The Fraternal Order of Police contested the March 18 suspension without pay and the July 24 dismissal.

An arbitrator found McDonald’s first suspension without pay and his firing improper and ordered McDonald reinstated effective July 15, 1999, but without back pay to the termination date. The arbitrator awarded back pay for the four-month period between McDonald’s suspension and termination.

The city appealed the arbitrator’s decision, but lost.

On July 21, 1999, McDonald sued the city, claiming his civil rights had been violated, also alleging he was defamed. In February 2000, Montgomery County Common Pleas Judge Jeffrey E. Froelich, granting summary judgment to the city, dismissed McDonald’s claims. McDonald appealed Froelich’s ruling on the due process claim.

The court of appeals found Friday that the city should have provided McDonald with a new hearing before or shortly after it stopped his pay. The appeals court found the hearing held for McDonald’s original suspension with pay did not cover the later issues of criminal charges and loss of pay.

The court found the one-year period between loss of pay and the arbitration hearing in March 1999 “was not sufficiently prompt.”

The city also had “no compelling public interest that required altering McDonald’s paid suspension to a suspension without pay,” Judge Thomas J. Grady wrote for the 2-1 majority that included Judge Mike Fain. Grady pointed out that “other Dayton police officers charged with misdemeanor criminal offenses have been suspended with pay, consistently.”

Elaine Bernstein, McDonald’s attorney, said she will seek to meet with the city and discuss McDonald’s attorney fees and other compensatory costs associated with his case. The city has paid the back pay for the four-month period awarded by the arbitrator, she said.

Judge James A. Brogan, the third judge, dissented, saying he would have sustained Froelich’s ruling that the city did not violate McDonald’s right to due process.

Brogan said the city’s initial internal hearing was sufficient to protect McDonald’s right because the criminal charges involved the same events. Brogan also said the hearings held after suspension were “adequately prompt.”

Dayton Law Director J. Rita McNeil could not be reached for comment.

* Contact Rob Modic at 225-2282 or e-mail him at rob_modic@coxohio.com

Copyright, 2001, Cox Ohio Publishing. All rights reserved.

COP LOSES SLANDER SUIT IN SPRAY CASE

DAYTON – A judge has thrown out a lawsuit by reinstated Dayton police officer Michael McDonald alleging he was slandered and his civil rights violated when he was fired for pepper-spraying a Wendy’s employee.

Judge Jeffrey E. Froelich of Montgomery County Common Pleas Court ruled that McDonald could not sue over statements about his actions by Rev. Raleigh Trammell, president of the Dayton chapter of the SCLC, and by former Police Chief Ronald Lowe Sr. during an arbitration hearing. McDonald complained that Trammell said, “I wonder why he didn’t think about (being treated unfairly) when he assaulted the young lady.” When served with McDonald’s complaint, Trammell said “I’m glad he didn’t pepper spray me.”

Lowe said he “believed he (McDonald) was enjoying himself when the incident occurred.”

Lowe’s statements were protected as part of a judicial proceeding and as opinion; Trammell’s statements were opinion and “sarcasm and not something the reasonable listener would have heard as a fact,” Froelich wrote in his Jan. 23 opinion.

“I thought it was groundless from the outset,” Trammell said of the lawsuit, won by his attorney, Neil Freund. “It has not intimidated me on that or any other issue I decided to speak out on.”

Dayton Law Director J. Rita McNeil said, “We’re just happy with the outcome, and hopefully we can bring closure to this entire case.”

Froelich also dismissed McDonald’s claim that his firing was excessive, reverse discrimination and a violation of due process.

Froelich said McDonald failed to show he got a greater penalty than other officers disciplined for similar acts. The judge also found that the city had justification to fire McDonald, and that binding arbitration, which ordered him reinstated, cured any procedural defect.

Elaine Bernstein, McDonald’s lawyer, declined comment.

McDonald, 36, was suspended without pay July 24, 1998, for arresting and pepper spraying Wendy’s employee Brandy Martin, then 17, whom he accused of shortchanging him Feb. 17. He was acquitted of a misdemeanor assault charge, but later placed on leave without pay.

In January 2000, Froelich upheld the arbitrator’s order to reinstate McDonald. A state appeals court affirmed the ruling March 10 and ordered McDonald reinstated to the Dayton Police Academy.

The city paid Martin $60,000 in December 1999 to settle her lawsuit against the city.

* Contact Rob Modic at 225-2282 or e-mail rob_modic@coxohio.com

Copyright, 2001, Cox Ohio Publishing. All rights rese

Random acts of language

* Will the city of Dayton apologize to Dayton Police Officer Michael McDonald now that three separate courts of law and an independent arbitrator have determined that he did not act inappropriately in pepper-spraying Brandy Martin? I don’t think so.

* To the March 29 “Speak Up” caller who said the young girl was wrong to try to fight Officer Michael McDonald at Wendy’s: Please don’t talk silly. She did not attempt to fight him. He was dead wrong. I don’t care what color these two people were, he was wrong!

* Officer Michael McDonald is like a lot of police officers. They think they are above the law and not just there to enforce it. If it had been you or me, we would have been arrested. The cops need to understand that they have no more rights than we do.

* Our roads were never designed to handle an 80,000-pound truck traveling 70 mph. In the United States, road beds are 39 inches, whereas in Europe they are 53 inches. Without the proper design, we have torn-up roads. * Re the March 23 `Speak Up’ comment that Dayton Police Officer Michael McDonald was right when he did what he did to the girl at Wendy’s: If it had been the caller he had confronted, I doubt he or she would feel that way. He should have gone to the manager about it first and explained the situation.

* If all police officers were like Dayton Officer Michael McDonald, the youth of Dayton would have more respect for police. He did nothing wrong, and that girl at Wendy’s had no right to resist arrest.

* If Officer Michael McDonald is reinstated to the Dayton police force, it should be to a desk job far away from any public contact. He should also have to reimburse the city for all expenses. * If all officers were like Officer McDonald, the city of Dayton would be broke.

STATE COURT ORDERS MCDONALD BACK

DAYTON – A state appeals court Friday ordered Dayton Police Officer Michael McDonald reinstated to the Dayton Police Academy while the city of Dayton asks the same court to overturn his full reinstatement.

McDonald, 35, was suspended without pay July 24, 1998, for pepper-spraying a Wendy’s employee. Later he was fired but acquitted of a misdemeanor assault charge that arose from the incident. Lt. Col. John Compston said plans were being made Friday to return McDonald to the Academy on Monday.

Susan D. Jansen is an attorney for the Fraternal Order of Police, which, as McDonald’s representative, won arbitration that ordered his reinstatement.

She said she was pleased with Friday’s decision by Judges Thomas J. Grady, William H. Wolff Jr. and Mike Fain of the 2nd District Court of Appeals.

`We’re anxious for him to return to the Academy,’ Jansen said.

* On June 28, 1999, an arbitrator reinstated McDonald, saying he did not use unnecessary force on Brandy Martin, then 17, and his unprofessional conduct did not justify dismissal. City attorneys appealed to Montgomery County Common Pleas Judge Jeffrey E. Froelich.

* On Dec. 22, the city commission approved paying $60,000 to settle a lawsuit filed by Brandy Martin’s mother.

* On Jan. 24, Froelich upheld the arbitrator’s decision to reinstate McDonald.

* On Jan. 26, the city announced McDonald would be permitted to return to work. He began working at the Dayton Police Academy two days later.

* On Feb. 2, the city told the courts it would appeal Froelich’s decision and also asked Froelich to uphold the city’s right to postpone taking McDonald back, even though McDonald was already working at the Academy.

* On Feb. 17, Froelich found he was legally bound to grant the city’s request to postpone McDonald’s return to work while it appealed his decision.

The FOP made the next move and asked the appeals court to overrule Froelich on whether McDonald could return to work during further appeals. The appellate panel found Froelich had correctly followed its 1992 ruling on a similar case, so it had no authority to change his decision.

But then the appeals court took a different path. It found that it had the authority to order the city to take McDonald back at the Academy if he could show he had suffered `manifest and extreme injustice.’

The appeals court focused on two decisions the city made in late January. First, it offered McDonald an Academy spot while it mulled further appeals. Second, after deciding to appeal, it kicked McDonald out of the Academy after he had quit a civilian job he took when he was dismissed in 1998.

`We conclude that McDonald will suffer manifest and extreme prejudice unless the city . . .’ is prevented from releasing him during the appeal,’ the court said.

`. . . McDonald’s restricted assignment will permit the city to avoid any risk that arguably might result to the public safety from returning him to patrol duties.’

Compston said McDonald would receive back pay retroactive to Feb. 17 when he was forced out of the Academy job.

Copyright, 2000, Cox Ohio Publishing. All rights reserved.