He was sentenced to up to three years of community control (probation), but the court terminated his community control earlier this year.
The Dayton Police Department released a statement this week announcing the arbitrator’s ruling, and saying that the city will appeal. The city said the “serious nature” of the accusations of sexual assault against Setty should have played a bigger role in the arbitrator’s decision.
“My concern is about our officers, this department and this profession,” Dayton police Chief Kamran Afzal said in a statement. “I strongly believe that the correct decision is and remains that Setty should not work for this department.”
But the disciplinary actions the city took against Setty were not consistent with the police union’s contract and were not consistent with case law, said police Sgt. Kyle Thomas, president of the Fraternal Order of Police Lodge #44, the police officers union.
Thomas said misdemeanor convictions do not rise to the level of termination under the police union’s contract.
However, he said, that does not mean that the city cannot terminate an employee for a misdemeanor conviction if it can demonstrate from the findings of an administrative investigation that the conviction violated rules of conduct, policies, procedures or negatively affected the workplace environment.
Arbitrator Susan Fernandez’s ruling says that Setty’s employer did not meet its burden to establish that it had just cause to terminate the officer or place him on an unpaid suspension.
Setty was placed on unpaid leave in June of last year and he was fired a couple of months later. The Dayton Fraternal Order of Police filed grievances, and the arbitrator ruled that Setty should be reinstated with back pay and benefits.
Fernandez’s decision calls for vacating Setty’s termination and modifying his discipline to a 30-day suspension.
“Given the employer’s inadequate internal investigation, disparate treatment towards grievant as compared to other similarly situated officers, and the chief’s complete lack of consideration of job performance and mitigating factors when determining the level of disciplinary action, it cannot be concluded that the employer had just cause to impose the ultimate sanction of termination,” Fernandez wrote.
Setty was put on paid leave in 2023 after police leadership learned about accusations made against him on a private Facebook group called “Are We Dating the Same Guy?Cincinnati/Dayton.”
The page provided a platform where women share information about men they date to try to determine if they are cheating or have bad reputations.
A few women told investigators with the Ohio Attorney General’s Bureau of Criminal Investigation that Setty performed sex acts while they were being intimate that they did not consent to, and that he did not stop when told to, investigative records state.
One woman told investigators that she performed a sex act on Setty at his home in 2023 because she believed she did not have a choice and it was the only way she was going to be able to leave, an investigative report states.
Setty joined the Dayton Police Department in 2006 and was promoted to sergeant in 2016.
Fernandez’s decision says there is no evidence that Setty’s actions adversely affected his ability to perform his job duties and that his employer conducted an “inadequate internal investigation” and treated him differently, compared to “similarly situated” officers.
The decision notes that other police officers who were convicted of misdemeanor crimes in the late 2010s were not terminated.
The decision also says that just cause requires a fair investigation into whether the alleged infraction occurred and what would be an appropriate form of discipline given the circumstances.
Sgt. Thomas said the city has to follow the rules and the appropriate process when it comes to discipline. He said the police union essentially does not defend individual employees or his or her actions — the FOP defends the union’s contract and case law.
“When the city takes shortcuts, when the city does not put in the full work product to justify their decision, they are breaking the rules,” he said. “The entire purpose of the union is to ensure the city treats their employees consistently and fairly.”
Thomas said he understands that there’s a lot of emotion around cases like this. But he said conflicts like this arise because the city did not do its job correctly.
“The city is well versed on how to adequately train or discipline their employees,” he said. “They should be working with the union if they have an issue, a problem — they should be working with us to ensure that if they feel righteous action should be taken that they are not skipping any boxes, that they’re not taking any shortcuts, that they are able to do so correctly, fairly and adequately, so you don’t have a problem with a contract violation or case law problem."
The city can appeal the arbitrator’s decision to the Montgomery County Common Pleas Court.
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