PHILADELPHIA — A Philadelphia Police lieutenant who was fired for sending a bestiality video to two women he supervised has been reinstated after an arbitrator ruled that his conduct was not egregious enough to merit termination.
Lt. Marc Hayes — who was also accused of telling one of the women she could mislead investigators reviewing the incident — was instead ordered to serve a 50-day suspension.
In his ruling, arbitrator David J. Reilly said that although the video Hayes sent was “very disturbing,” “extremely graphic” and inappropriate, the transmission did not constitute sexual harassment.
And although Reilly ruled Hayes had violated other department policies, such as failing to provide the women with professional supervision, he found that Hayes’ time on the force before the episode was otherwise distinguished, with no similar allegations of misconduct.
“On balance, and weighing the totality of the circumstances, I conclude that dismissal represents an excessive response in this instance,” Reilly wrote.
In addition to getting his job back, Hayes was awarded back-pay for the two years between his firing and reinstatement.
Commissioner Danielle Outlaw was sharply critical of the decision, saying it could undermine the department’s position that harassment and discrimination should not be tolerated. She also said the ruling could have a “chilling effect” on victims who may be reluctant to speak up.
And she noted that she was hired to replace a commissioner who resigned amid his own sexual harassment scandal — one that made national headlines and led Mayor Jim Kenney to search for a top cop intent on reforming the department’s culture.
“When arbitrators overturn these necessary disciplinary decisions, the reinstated officers and others think they can disregard my mandate and attempts to change the problematic aspects of the Department’s culture,” Outlaw said in a statement.
The decision was another example of a disciplinary process that some critics — including police commissioners — have characterized as ineffective. The Philadelphia Inquirer in 2019 found that arbitrators had overturned police discipline in 70% of cases over the previous eight years.
The police officers union, which can file grievances contesting disciplinary decisions, said that record showed that the state-mandated arbitration system protected cops from unfair or hasty penalties.
The union backed Hayes’ grievance, arguing that his sharing of the video “was a poor attempt at humor ... for which he is deeply remorseful,” according to Reilly’s opinion.
A spokesperson for the Fraternal Order of Police Lodge 5 declined to comment Wednesday.
Attempts to reach Hayes for comment were not successful.
The events that led to Hayes’ firing began on Aug. 13, 2018. Reilly’s opinion gave the following account.
On a group text, two female officers — whose names are redacted — were asking Hayes about whether they needed to return to the 24th District after testifying in court, or whether they could go home.
He allowed that and later sent the offending 90-second video.
One of the women replied: “Please don’t send me things like that.”
Months later, in October 2018, an anonymous letter about the episode was found in the 24th District headquarters, triggering an Internal Affairs investigation.
One of the women spoke to investigators, saying she found the video “gross and inappropriate,” but did not believe Hayes was trying to harass her. He later apologized to her, she said.
In that same conversation, which took place after the investigation began, the woman said Hayes suggested that if called to testify, she could tell Internal Affairs she didn’t remember anything. She told Hayes she wouldn’t lie.
Hayes told investigators the video was a joke, but that he realized it was a mistake shortly after sending it and apologized. He denied trying to influence what either officer might tell Internal Affairs. And he said he made “a personal commitment to improve the culture within the department for all officers,” including by trying to better inform colleagues about equal employment protections.
Outlaw fired Hayes in July 2020 for violating four department policies, including sexual harassment.
Reilly ruled that although Hayes’ texts, were inappropriate, the city did not provide evidence showing that either officer was offended or believed the texts created a hostile work environment. Reilly cleared Hayes of the harassment charge.
Still, he found that Hayes had violated three other departmental policies and issued a combined penalty of a 50-day suspension.
Kevin Lessard, a city spokesperson, said city officials can only issue suspensions of up to 30 days, but arbitrators have the ability to levy longer penalties.
Reilly’s ruling to reinstate Hayes was issued on July 22. Lessard said the city plans to appeal.
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