Ray Tensing is trying to get his job back as a cop at the University of Cincinnati.
The former UC police officer was fired on July 29, 2015 – the day he was indicted on murder charges for killing Sam DuBose during a traffic stop. That same day, the Ohio police union filed a grievance on his behalf saying his employment was terminated without just cause.
That grievance was then put on hold for nearly two years while the criminal case played out.
Now, after two hung juries and the prosecutor's decision to dismiss the charges against Tensing, the union immediately set the grievance back in motion.
It asks for Tensing to be reinstated and awarded back pay, based on the terms of the union's contract with UC.
The case boils down to whether or not UC followed its own disciplinary policies.The fact that Tensing was denied a disciplinary hearing before he was fired, wasn't placed on paid leave and wasn't convicted are all part of the equation.
A single arbitrator (essentially a judge outside of a court) will settle the dispute. UC and the police union will agree upon who that person is.
University officials could not be reached for comment about the grievance.
However, when asked previously about the possibility of Tensing returning, university spokesman Greg Vehr said UC has no intention of reversing its decision to terminate Tensing’s employment.
The day after Tensing was cleared, UC general counsel Lori Ross told The Enquirer any legal action initiated by Tensing regarding his termination would be at the discretion of Tensing and his legal representatives. She did not mention the grievance at that time.
Randy Freking, a local expert on employment law, said he’d be very surprised if Tensing were to be reinstated or be successful in any kind of lawsuit.
“The lack of a conviction does not mean Tensing did not act improperly,” Freking said.
Officials at the Fraternal Order of Police, Ohio Labor Council, Inc. did not return multiple messages for comment. The Columbus-based group, which represents more than 9,000 members in 450 bargaining units, is the largest, most experienced organization representing law enforcement in Ohio.
Here's how Tensing could return to UCPD with back pay:
UC police officers who could be suspended, demoted or dismissed are entitled to a pre-disciplinary conference before any action takes place, according to the collective bargaining agreement between UC and the police union.
At the disciplinary conference, Tensing could have presented any testimony, witnesses or documents explaining his decision to fire the fatal shot.
Tensing never got that chance, which goes directly against the terms of the agreement, the union argues.
Normally, a public employee is entitled to a pre-disciplinary hearing, but sometimes, it comes down to whether that hearing would have made a difference, according to Freking, who chairs the Cincinnati Employment Lawyers Association.
The university also must detail the alleged infraction and the anticipated discipline in writing, the collective bargaining agreement requires.
Tensing's termination letter mentions his indictment and says the fatal shooting “negatively impacts your ability to function in the community or work under the colors of the university.”
Freking said the university fired Tensing because of his action at that particular traffic stop, not the murder indictment.
A UC police employee charged with or indicted for a felony may be placed on a paid leave of absence until the court case is resolved, according to the agreement. That did not occur in Tensing's case.
Since Tensing was immediately fired, he should be entitled to back pay, the union argues. He was making about $51,000 per year in 2015, but it's unclear what the total payout might be.
Two weeks ago, Hamilton County Prosecutor Joe Deters announced there would be no third trial for Tensing. That ended the criminal case, which gave the police union the green light to move forward again with the grievance nearly two years after it was filed.
The U.S. Attorney’s Office is also examining whether to open a civil rights investigation into the Tensing case, which could lead to federal charges against Tensing. Would that possibly put the grievance on hold again? Neither UC nor the police union responded to interview requests.