DeLAND, Fla. – A DeLand police officer fired for making a wrongful arrest in 2017 will be back on the force following an appeal to the city’s decision to fire him after an arbitrator found issues with the investigation into the incident leading to his dismissal.
Officer Johan “Joey” Mulero was fired in December 2018 after a DeLand Police Department internal investigation determined he used “excessive and unreasonable” actions while arresting a man. The charges of resisting arrest were dropped and the man sued the city. The litigation was later settled outside of court.
Mulero’s union, the International Union of Police Associations, filed an appeal of the city’s decision on his behalf. Two arbitration hearings were held last year and open to the public in July and November prior to the decision on March 13. The final decision is also available to the public via a records request.
According to the 23-page ruling submitted by the arbitrator, Christopher M. Shulman, the city had justified cause to discipline Mulero but not discharge him due to several issues with the internal affairs investigation.
In a statement, the city of DeLand said it will abide by the arbitrator’s ruling but “we are extremely disappointed and dismayed that the arbitrator upheld the City’s finding of fact concerning Mulero’s misconduct and agreed it was a dismissible offense, only to then contradict those findings by deciding to reinstate him. This exposes a serious flaw in the system that allows an officer with a history of misconduct to continue their employment without facing the appropriate consequences for their actions.”
During a December 2018 hearing with union representatives and police Chief Jason Umberger, Mulero said of the incident, “I had a bad day; a really bad day and I wish I could go back. I just don’t want this to define me as the wrong officer.”
The arbitrator agreed that Mulero’s actions could have warranted losing his job and he did not accept as Mulero claimed he was just having a “bad day” because of other videos showing his interactions with members of the public.
Mulero “has tended to react aggressively whenever a member of the public is anything but immediately compliant and fawningly polite,” the arbitrator wrote.
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,” the arbitrator wrote in his ruling.
However, Mulero’s grievance filed was sustained in part and the city was ordered to reinstate him with conditions due to several issues with the DeLand Police Department Internal Affairs investigation, according to the ruling.
The department failed to comply with the Law Enforcement Officers’ Bill of Rights on several grounds, according to the arbitrator. The city was unable to provide video and audio tapes of interviews with the man Mulero arrested made during the IA investigation “so they were available for comparison to the typewritten statement.”
The arbitrator also found issue with Deputy Chief Gary Batten’s role in the analysis and conclusions made in the IA report. Batten changed the conclusion for the excessive force charge from “not sustained” to “sustained” and deleted the explanatory clause the IA sergeant had given for his earlier “not sustained” outcome, according to the arbitrator’s ruling.
The arbitrator wrote this was “no mere grammatical or writing style correction; it is a substantive increase in the ultimate findings and may, frankly, have been the tipping point that led to discharge as the discipline imposed.”
Mulero is required to undergo additional training and will not receive back pay for the last two years.
“The City was required to make sure the investigation was conducted properly – but did not,” the arbitrator determined.
Mulero’s reinstatement is also a “last chance” with the department because if he is again accused of violating policy, he will be dismissed, according to the arbitrator.
Below is the full statement provided by the city of DeLand:
In December 2018 the City terminated the employment of Officer Johan Mulero following a disturbing incident during which he mistreated and wrongfully arrested a DeLand resident.
Mr. Mulero appealed the City’s decision, as is his right, and the City and Mulero both presented their cases to an independent arbitrator late last year. During this hearing, the City presented Mulero’s Body Worn Camera footage, which showed that the incident mentioned above was not an isolated one, but rather represented a pattern of misconduct by Mulero in his interactions with members of the public during his tenure with the police department.
Given the same set of circumstances with Mulero or any other officer, the likely outcome would have been termination. Indeed, Mulero’s actions do not at all represent how we train our officers to interact with members of the public.
We were notified Friday that the independent arbitrator affirmed many of the City’s findings, including Mulero’s serious mistreatment of members of the public, and found that ordinarily the appropriate punishment for such conduct would be termination. However, due to some technical issues with the City’s investigation into Mulero’s misconduct, the arbitrator chose to effectively give Mulero a two-year unpaid suspension and is requiring him to undergo additional training instead of upholding the City’s decision to terminate his employment.
While the City will abide by the arbitrator’s ruling as required, we are extremely disappointed and dismayed that the arbitrator upheld the City’s finding of fact concerning Mulero’s misconduct and agreed it was a dismissible offense, only to then contradict those findings by deciding to reinstate him. This exposes a serious flaw in the system that allows an officer with a history of misconduct to continue their employment without facing the appropriate consequences for their actions.
As for Mr. Mulero, he is once again an employee of the City and the police department, and we will provide support for him to be the best person and officer he can be. He will be required to undergo extensive training and will be re-trained in de-escalation techniques to ensure this type of misconduct never occurs again. We hope this serves as a learning experience on what it means to be a police officer and is used by him as an opportunity to grow as a person.City of DeLand