Boynton Beach alleges arbitrator misconduct, ‘pressure’ from union in decision to rehire fired Officer (Mark Sohn, South Florida Sun Sentinel)

Good issue on ethics of arbitration. For more, see Judge James L. Guill & Edward A. Slavin, Jr., "A Rush to Unfairness: The Downside to Alternative Dispute Resolution," American Bar Association Judges' Journal (Summer 1989)

Boynton Beach alleges arbitrator misconduct, ‘pressure’ from union in decision to rehire fired Officer Mark Sohn

By ANGIE DIMICHELE | adimichele@sunsentinel.com | South Florida Sun Sentinel

PUBLISHED: August 22, 2024 at 2:50 p.m.

The city of Boynton Beach has filed its appeal of a recent arbitrator’s award that determined an officer who was fired in 2022 after he chased a teen who crashed a dirt bike and died should get his job back.

The city in its petition alleges misconduct by the arbitrator and that the police union put “mounting pressure” on the arbitrator to issue his decision.

The city filed its appeal in Palm Beach County Circuit Court Aug. 16 against the Palm Beach County Police Benevolent Association. The arbitrator is not named as a party in the case. An order by the judge filed Tuesday says the case has been designated to the “streamlined track,” to ensure it will be resolved within 12 months.

Officer Mark Sohn was fired after an Internal Affairs investigation determined he engaged in an unauthorized pursuit that violated department policy on Dec. 26, 2021, when he chased 13-year-old Stanley Davis III, who was riding a dirt bike he got just a day earlier as a Christmas present.

Sohn, a nearly 20-year veteran officer in the department at the time, was driving between 79 and 80 mph in a 35-mph zone, a Florida Highway Patrol investigation found. Davis crashed his dirt bike while riding about 85 mph and died.

Former Interim City Manager James Stables wrote in an August 2022 termination letter to Sohn that he was in pursuit of Davis that day and that he “clearly and unequivocally” violated the city’s policies. According to the city’s petition, Sohn continues to deny that he was chasing Davis.

The police union argued that Sohn did not pursue Davis but instead attempted two separate traffic stops, according to the city’s petition.

Davis’s death led to massive outcry from his family, friends and from many in the community, who repeatedly called for Sohn’s termination and for improvements in the relationship between the police and the Black community in Boynton Beach. Sohn had been disciplined multiple times before 2021 for violating the department’s pursuit policy, including one incident where a man crashed and died.

In May, arbitrator James W. Mastriani issued a 43-page award that said though Sohn did violate the pursuit policy, he should get his job back without back pay, benefits or seniority.

The city said in its petition that there was a “ridiculous delay” of more than a year between the final hearing and arbitrator’s decision.

The city also alleges Sohn’s attorney with the Palm Beach County Police Benevolent Association and arbitrator were communicating ex parte, which is when one side communicates with the decision-maker and the other side is not aware of it.

The petition argues that the time delay and alleged ex parte communication “demonstrates evident partiality” and requests that the award be vacated.

The city says that two emails in April between Sohn’s union attorney Larry Fagan and Mastriani were sent without them being aware, one where Mastriani was asked for a deadline in Sohn’s case in an email about a separate, unrelated case and one where Fagan said they needed to know about whether he was issuing the award or not, according to the petition.

“Mr. Mastriani: We need to know, please, whether you are in fact issuing an award in Mark Sohn’s case,” one of Fagan’s emails said, according to the petition. “If you are not, we will need to make other arrangements. Please let us know. He cannot wait indefinitely.” Mastriani responded to Fagan that his estimated date was May 15.

On May 15, nearly 300 days after closing briefs were submitted in the case, the arbitrator told the city and Fagan in an email that his award would be issued May 20, according to the city’s petition. Before that May 15 email, Sohn was “telling people he knew when the award was to be issued and that he was reinstated,” the city said.

The city wrote in an email to Fagan on May 17: “Then, just as Mr. Sohn predicted, on May 15th we received an email from Mr. Mastriani saying he would issue his award on May 20th.” The city became concerned about possible ex parte communications.

 

“There have been no improper ex parte communications about the substance of the case whatsoever,” Fagan replied to the city, according to the petition. He said there were no phone calls to the arbitrator about Sohn’s case and that he “unintentionally” asked the arbitrator in an email about a separate matter from Riviera Beach about the deadline for the award in Sohn’s case.

“There are no other written or verbal communications about this case about which you are unaware,” Sohn’s attorney wrote.

Later that same day, the city emailed Mastriani and the union demanding the award not be issued and that Mastriani be recused “for improper conduct and ex parte communications.” The arbitrator  two days later denied the city’s attempt. The next day Mastriani issued the award.

Mastriani emailed the attorney representing the city in the case on May 19 denying the city’s demand for recusal. He explained that the amount of time that passed had not impaired his ability to make a decision and that he took lengthy notes of witness testimony during arbitration and had reviewed all materials from the five-day proceeding. He said he briefly replied to Sohn’s attorney in two emails “that solely made reference to date of award issuance” and had not talked about the case with anyone since the hearings ended.

“I also note that I am not aware of nor can I control any statements or opinions anyone may have made concerning the merits of this case or threats to appeal an award depending on the outcome,” Mastriani’s email to the city’s attorney said.

The city’s petition says “there is no dispute” that Mastriani replied to Fagan’s email about the Riviera Beach case, without the city being copied on the email, and said May 15 was the estimated deadline for his decision.

“The knowledge of the specific date and the confidence with which Sohn exuded when bragging about when the award was being issued and that he was going to get his job back raised significant concerns for the city of inappropriate communications between the union and the arbitrator,” the city’s petition said.

The city wrote in the petition that though Mastriani “took an exceedingly long time” to issue the award, “the union went to great lengths in pressing and applying unnecessary pressure and influence” for Mastriani to issue it. The union “increasingly became more influencing,” according to the petition.

In February, the union emailed Mastriani and said one of their former attorneys was now a circuit court judge in Vero Beach and was “still interested in the result and he is cc’d herein.” In April, they wrote that Sohn was “finding it difficult to move on without closure on this,” according to the petition.

Arbitrator Mastriani and Sohn’s attorney did not respond to a voicemail and email seeking comment Thursday afternoon.

Bryce Graham, a spokesperson for Davis’s family, wasn’t available to comment on the petition Thursday afternoon.

This is a developing story, so check back for updates. Click here to have breaking news alerts sent directly to your inbox.