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In re
CITY OF COLUMBUS
and
FRATERNAL ORDER OF POLICE
CAPITAL CITY LODGE NO. 9
Decision of Arbitrator
FMCS Case No. 00/01343
August 16, 2001
Charles W. Kohler, Arbitrator,
selected by parties through procedures of the Federal Mediation and
Conciliation Service
The case
herein arose when a grievance was filed on October 1, 1999, following the
discharge of H__, who was employed as a police officer with the City of
Columbus. H__ was discharged for failing to comply with the residency
requirements for police officers, and for being untruthful in an interview
during the investigation of his residency.
Prior to the
filing of the grievance, on September 28, 1999, H__ filed an appeal of his
termination with the Columbus Civil Service Commission. The City of Columbus
initially rejected the grievance based on the fact that the Columbus Civil
Service Commission had taken jurisdiction over the matter. Under the collective
bargaining agreement, a bargaining unit member who elects to pursue a matter in
another forum is denied the use of the contractual grievance procedure, once
that forum takes jurisdiction over the matter. However, on October 24, 1999,
the parties agreed that the grievance could proceed to arbitration. The parties
further agreed that, if the arbitration results in the reinstatement of H__,
there shall be no award of back pay.
The Grievant in this matter is H__. He was employed as a police
officer by the City of Columbus (“Employer” or “City”). Police officers
employed by the City are represented by the Fraternal Order Police, Capitol
City Lodge No. 9 (“Union” or “FOP”).
The City's
Charter contains a residency requirement for certain employees, including
police officers. The requirement is contained in Section 158-1, and has been in
effect since 1971. The provision requires that affected employees:
shall at
all times, during their employment, maintain their residence within the
boundary, lines of [the] County of Franklin or within the boundary lines of the
counties that border on the County of Franklin *
* *.”
When Grievant was hired, he signed a document, dated February 10,
1990, signifying that he had read and understood the residency
requirement.
Police officers are required by item 1.05(A)(1) of the Rules of
Conduct to “Record their residence address” with the City. In early 1999, the
Division of Police received information alleging that the Grievant was not
living at the address he had furnished to the City as his place of residence.
The information was furnished to the Department of Internal Affairs, and the
matter was assigned to Sergeant David Sicilian for investigation.
At the time
that the investigation began, the residence address furnished by Grievant was
[in] 1414 New Albany, Ohio. The Segefield address is within Franklin County.
Sergeant Sicilian went to this address several times in March 1999 to observe
activity. He did not observe the presence of the Grievant or of his truck.
In March
1999, Sicilian attempted to follow the Grievant after he completed his shift
and left police headquarters in downtown Columbus. On the first occasion, on
March 24, Sicilian and another officer, in separate cars, followed the Grievant
to rural Perry County. As he was being tailed, Grievant pulled his truck to the
side of the road, as he apparently suspected that he was being followed. The
two police cars then went past him and the surveillance was concluded. On March
31, Sicilian drove by the address on Hopewell Township Road in Perry County
where Grievant was suspected of living, and saw the Grievant and his vehicle at
the property. On several occasions in April, Sicilian drove by the Perry County
property but did not observe the Grievant. On May 12, Sicilian followed
Grievant from police headquarters, Sicilian lost the Grievant's truck for
awhile, but later observed him pull his truck into the garage at the same
property in Perry County where he had been observed on March 31. On May 13,
Grievant was followed in a police helicopter. He was seen going to the same
Perry County property. On May 14 and 19, Sicilian followed Grievant from police
headquarters to the Perry County property. Perry County is not contiguous to
Franklin County.
The property
that Grievant traveled to was located [in] Thornville, Ohio. In 1996, Grievant
purchased six acres of vacant land at that location. After purchasing the
property, Grievant constructed a house, which was completed in October 1996.
Grievant estimates that the value of the property is approximately $150,000.
On May 20,
1999, Sicilian went to [the] New Albany, Ohio [address], which Grievant had
indicated was his principal residence. This address was in a condominium
development. Sicilian interviewed the occupant, who identified herself as M__.
M__ is Grievant's mother-in-law. She consented to give a tape-recorded
statement to Sicilian. During the interview, M__ stated that she was the owner
and sole occupant of the condominium, which she had purchased in November 1995.
M__ denied that the Grievant lived there. S he stated that her daughter, N__,
resided at the property until N__ married the Grievant in October of 1997. When
asked by Sicilian, M__ indicated that she was aware that the Grievant sometimes
used her address as a mailing address. She also told Sicilian that the Grievant
had not visited her residence for about two months.
In addition to the surveillance and the interview with M__,
Sicilian obtained several documents in which either the Grievant, or his wife,
indicated that they resided in Perry County. Sicilian also interviewed several
persons who were present at houses near the property. In a letter, dated May 5,
1999, to the Columbus Civil Service Commission (“Commission”), Sicilian
concluded that there was “clear and convincing evidence” showing that the
Grievant was residing in Perry County, in violation of the City Charter.
On June 8, 1999, the Commission notified the Grievant that a
residency hearing would be held on June 17, 1999. He was advised to bring
documentation to the hearing to show that he was in compliance with the residency
requirement in the City Charter. The Commission requested that Grievant provide
a deed or a lease showing residency, in addition to other documents. The
Commission also requested that the deed or lease have a notarized statement
attesting that the property is the principal residence of the employee.
Grievant failed to comply with the requests, as he did not submit either a deed
or a lease. Following the hearing, which was actually held on July 22, 1999,
the Commission agreed to allow the Grievant an additional 30 days after the
hearing to submit proper documentation of his residence. Grievant failed to
submit satisfactory documentation within the specified time period. On August
30, 1999, the Commission determined that the Grievant did not meet the
residency requirement, and would be removed from the payroll as of October 7,
1999.
On September 15, 1999, a hearing was held in regard to the charges
against the Grievant. The hearing was conducted under the authority of the
office of the Director of Public Safety. The director, Thomas Rice, was not
present at the hearing. E. Gayle Saunders, Deputy Director of Public Safety,
conducted the hearing. The record of the hearing indicates the subject of the
hearing was the following charges and specifications, dated August 20,
1999:
Charge I : You are hereby charged with violating Rule 1.05(A) 1,
which reads in part, “Division personnel are to: Reside in Franklin, Union,
Delware (sic), Licking, Madison, Fairfield, or Pickaway county.”
Specification I : On or about October of 1997 to May 1999 you did
reside [in] at Thornville, Ohio 43076 in Perry County.
Charge II : You are hereby charged with violating Rule of Conduct
1.15(A) 5, which reads in part, “Division personnel are to: Be truthful at all
times.”
Specification I (sic): On or about May 25, 1999 you were
untruthful to Sergeant David Sicilian II #5182 and Sergeant Steven Hope #5257
during a Internal Affairs interview. You stated that you did not reside [in]
Thornville, Ohio 43076 in Perry County.
On September
20, 1999, the Grievant was informed that it was the decision of Director Rice
that he be terminated. On October 1, 1999, the Union filed a grievance on
behalf of Grievant. The grievance alleged that the termination was not for just
cause as is required by the collective bargaining agreement. As stated above,
both parties agreed that the matter of the Grievant's termination is properly
before the Arbitrator for a final and binding decision.
The issue before the Arbitrator is as follows:
Did the City of Columbus have just cause to discharge the
Grievant, H__? If not, what shall the remedy be?
Relevant Provisions of the Labor Agreement
ARTICLE 8
INTERNAL INVESTIGATION PROCEDURES
* * *
8.10 Admissibility of Evidence . Any evidence
obtained in the course of an investigation through the use of administrative
pressures, threats, lies, coercion or promises shall not be admissible in any
subsequent criminal action or departmental hearing.
ARTICLE 10
COLLECTIVE/DISCIPLINARY ACTION AND RECORDS
10.1 Collective/Disciplinary Action for Cause
. No bargaining unit member shall be removed, reduced in pay or position,
suspended, required to forfeit accrued leave (excluding sick leave), given
documented constructive counseling or a written reprimand, or suffer any career
disadvantage except for just cause.
ARTICLE 12
GRIEVANCE PROCEDURE
* * *
12.7 Grievance Procedure . The following are
the implementation steps and procedures for handling grievances:
* * *
(F) Step Five — Arbitration .
* * *
(3) Authority of Arbitrator. The Arbitrator
shall conduct a fair and impartial hearing on the grievance, hearing and
recording testimony from both parties and applying the rules of the FMCS. The
Arbitrator shall have no authority to add to, detract from, or modify or
otherwise change any of the terms or provisions of this Contract. The decision
of the Arbitrator shall be final and binding on all parties.
Position of the Union
The Union
does not deny that the Grievant owned property in Perry County on which he
built a house. It alleges, however, that the Grievant only used the house as a
second home, rather than as his primary residence. The Union contends that, at
the time of the internal affairs investigation, the Grievant and his wife both
lived in Franklin County with M__, Grievant's mother-in-law. The Union notes
that the City has no rule which prevents a police officer from maintaining a
second home outside of Franklin or a contiguous county.
The Union
asserts that the investigation by Sergeant Sicilian was flawed. The Union takes
issue with the conclusion of Sicilian that the Perry County property was the
primary residence of the Grievant. The Union contends that it is
inconsequential that Grievant drove to the property after work on the occasions
when he was followed by Sicilian. Grievant had the right to go to his second
home whenever he desired. During the time of the investigation, the Union states
that the Grievant was at his property more frequently than normal because he
was building a fence around the property.
The Union
contends that Sergeant Sicilian obtained the tape-recorded statement of M__
through surprise and intimidation. The Union contends that the City has
misconstrued the contents of the interview. It states that although M__
mistakenly told Sicilian that Grievant did not reside with her, her statement
can be explained by the fact that the Grievant was spending more time than normal
in Perry County because his mother was temporarily staying at his Perry County
house. The FOP notes that M__ testified under oath at the Commission hearing
that Grievant and his wife were living with her, and had lived with her since
October 1997.
The Union
contends that the Grievant submitted most of the necessary documents at the
Civil Service Commission hearing of July 22, 1999. The FOP notes that the
Grievant submitted his driver's license, car registration, tax returns, medical
bills, and bank statements. The Union states that all of these documents show
that the Grievant resided in Franklin County. The Union asserts that the
Grievant was unable to present a deed or lease because he lived in his
mother-in-law's home, and did not have a lease. Further, the Union points out
that the Grievant and his wife did sign a lease with M__ after the Commission
hearing. The lease was submitted to the Commission on September 7, 1999, but
the Grievant was terminated by Thomas Rice, Director of Public Safety, before
the Commission could consider the lease.
The FOP contends that the evidence against Grievant was obtained
through deceit, and in violation of the collective bargaining agreement, which
prohibits the use of “threats, lies, coercion or promises.” The Union also
contends that Rice terminated the Grievant without completely reflecting on the
evidence. It notes that the Director was not in attendance at the hearing
concerning the charges filed against the Grievant, and that he made the
decision the day after the hearing.
The FOP also takes issue with the charge that the Grievant was
untruthful during the investigation. This charge is solely based upon the
assertion of the Grievant that his primary residence was not in Perry County.
Grievant was truthful when he answered questions concerning any relevant facts.
He merely disputed the charges against him. Thus, the Union contends that the
charge of untruthfulness should not be considered as an independent basis for
discipline.
Position of the City
The City contends that this is simply a case where an employee
failed to comply with the City Charter. Since the Grievant did not have his
principal residence in either Franklin County or a contiguous county, he did
not meet the mandatory residency requirement, and was, therefore, properly
terminated.
The City
points out that, during her initial police interview, Grievant's mother-in-law
clearly and unequivocally stated that the Grievant did not live with her. The
City asserts that there is no evidence that M__ was intimidated, confused or
surprised by the interview. The City contends that the tape recording of M__'s
interview demonstrates that she was speaking freely.
The City
argues that there is abundant evidence showing that the Grievant had his
principal residence in Perry County. The surveillance by Sergeant Sicilian
shows that the Grievant often went to his Perry County residence after work. In
addition, the Grievant was never observed at his mother-in-law's residence. The
City points out that several neighbors in Perry County believe that Grievant
lived there, and that Grievant kept a number of live animals on the premises,
which is an indication of continuous occupancy. The City also notes that the
Perry County address was used on an automobile lease application, marriage
license, and on an employment application completed by Grievant's wife.
The City asserts that the testimony of the Grievant and his wife
is lacking in credibility. The City asserts it is simply not believable that
the Grievant would not know that a corporation owned by his wife now owns the
Perry County property. The City also points out that the Union did not have M__
testify at the arbitration hearing.
The City contends that termination was an appropriate action to
take considering the fact that the Grievant was unable to show that he was in
compliance with the residency provision of the City Charter. In addition, the
City asserts that the evidence clearly shows that the Grievant was untruthful
during the internal affairs investigation of his residency.
The Union does not challenge the right of the City to require some
employees, including police officers, to live in Franklin County or in a
contiguous county. Thus, the appropriateness of the residency requirement need
not be discussed herein. The issue concerns whether or not Grievant maintained
his principal residence within the area required by the City Charter. The Union
contends that Grievant complied with the charter provision, while the City
contends that Grievant failed to comply. For the reasons stated below, the
Arbitrator finds that the weight of the evidence warrants the conclusion that
the Grievant violated the residency requirement.
It is
undisputed that ownership of property, including a house, outside of the
designated residency area does not violate the City's residency requirement.
The issue of secondary residences is not addressed in either the City Charter
or the regulations of the Division of Police. The City does not contend that
employees are prohibited from maintaining more than one residence.
The situation herein is that Grievant owned a relatively new
$150,000 house with extensive property outside of the mandatory residency area,
but within a reasonable commuting distance of Columbus. However, he maintains
that his primary residence is a condominium that he and his wife share with his
mother-in-law. The fact that he owned a home in Perry County, but owned no home
in the mandatory residency area, raises some suspicions as to the actual
residency of the Grievant. Under these circumstances, it was reasonable for the
City to investigate the living arrangements of the Grievant. During the period
of the investigation, Grievant was observed driving to his Perry County
property after finishing work. The interview with M__ was conducted only after
the investigation disclosed the Grievant's pattern of going from work to his
Perry County property, instead of the location reported by the Grievant as his
residence.
Clearly, the surveillance evidence is not
conclusive. Grievant was observed at the Perry County property only five or six
times over a period of almost three months. Standing alone, these observations
do not prove that Grievant lived in Perry County. However, other evidence
obtained during the internal affairs investigation is more significant. The
interview with M__ is the strongest evidence of the Grievant's living
arrangements. The fact that the Grievant and his wife used the Perry County
address on numerous documents is also persuasive.
A recording of the M__ interview was played at the arbitration
hearing and a copy of the tape was admitted into evidence. M__ was interviewed
at her condominium in New Albany, which is in Franklin County. She was told
that the interview was being conducted as part of an internal affairs
investigation concerning Grievant. She stated that she was aware that the
interview was being taped and that she was speaking freely and voluntarily.
Contrary to the assertion of the Union, there is nothing on the tape that would
indicate that M__ was intimidated, or was coerced. During the interview, she
unequivocally stated that Grievant does not reside with her. She stated that
Grievant lives with her daughter in Perry County. Further, she stated that the
telephone number she uses to call them is the number assigned to the Perry
County residence. M__ was asked directly about the living arrangement at her
residence, and about the residence of the Grievant. She answered in the
following manner:
Q. [by Sicilian] Do you reside at this
address?
A. [by M__] Yes.
Q. Who else resides at the address with
you?
A. No one.
Q. Do you rent the residence out to
anyone?
A. No.
Q. Are you the only one who receives mail at
this location?
A. No.
Q. And who else receives mail here?
A. H__.
* * *
Q. Does H__ reside at this address?
A. No.
Q. Does N__ reside at this address?
A. No.
Q. According to the investigation that we
have concluded with respect to Officer H__, there's an indication that he lives
in Perry County. To the best of your knowledge is that where H__ resides?
A. Yes.
While
Sicilian asked M__ some leading questions, there is no indication that he attempted
to coerce or deceive her. At the end of interview, M__ stated that she knew
that Grievant used her address as a mailing address with the Columbus Police
Department. Near the end of the interview, she apparently began to realize the
reason for the questions. At that point, Sicilian permitted M__ to refrain from
responding to questions that she did not wish to answer. However, even after
she realized the possible impact of the interview, she told Sicilian that
Grievant had not been to her residence in over two months.
M__ also testified at the Commission hearing
on July 22, 1999. Her testimony at that time contradicted information she had
given during the May 20, 1999, interview. At the Commission hearing, she
testified that Grievant currently resided with her and had been residing there
since October of 1997. She testified that Grievant and his wife (M__'s
daughter) lived there rent-free, and stayed in the lower level. She attempted
to explain the inconsistency in her statements by asserting that she thought
Sicilian was investigating an incident that had occurred the previous evening
involving a grandchild and the Columbus Police Department.
M__'s assertion that she was mistaken as to
the purpose of Sicilian's interview lacks credibility. Sicilian told her at the
beginning of the interview that she was being interviewed in reference to the
Grievant. The questions had absolutely nothing to do with an incident involving
her grandchild. M__ never referred to her grandchild during the interview.
The most logical explanation for the change in her statement was
that she was attempting to help out her son-in-law by testifying falsely at the
Commission hearing. By the time of the hearing, she was fully aware of the
consequences of her earlier interview. She knew that if she testified that
Grievant did not live with her, he would lose his job as a police officer.
Her
statements during the interview with Sicilian, made before she was aware of the
consequences, are more worthy of belief.
The City presented evidence showing that Grievant's future wife,
N__ listed the [Perry County] address as her address on a marriage license
application on September 8, 1997. On an application for an automobile lease,
dated August 16, 1997, Grievant and his future wife both listed [the Perry
County address] as their residence address. On the lease application, both of
them signed the application certifying that the information on the application
was true. At the hearing, N__ attempted to justify the use of the address by
stating that she wanted to receive her lease statements there in order to
ensure that she could make timely payments. However, if she only used the
[Perry County] property as a secondary residence, it makes little sense to have
statements sent there.
This case
must be decided based on credibility. Grievant actions after he found out that
the City was investigating his residency cast considerable doubt on his
credibility. Following the receipt of the notice that the Commission was
examining his residency, he arranged for the sale of the Perry County property.
Grievant testified that he sold the property because of the problems he was
having with the City regarding the residency requirement. A purchase agreement,
dated July 10, 1999, was entered into between the Grievant and his wife, as
sellers, and S__, as the buyer of the property. Records of the Perry County
Auditor show that the property was transferred from Grievant to S__ on July 22,
1999. The records show that when S__ owned the property, the tax mailing
address was: H__, Thornville, Ohio.
The records also show that, on December 30, 1999, the property was
transferred to M__. On July 12, 2000, the property was transferred to Somerset
Land Corporation, which is a corporation owned and/or controlled by N__,
Grievant's spouse. As of July 18, 2000, the mailing address of Somerset Land
Corporation was [in] Thornville, Ohio. In his testimony, Grievant stated that
he was employed by Somerset Land Corporation as a property manager. He also
testified that he had no knowledge that the corporation had acquired the
property. This assertion is not worthy of belief, considering the fact that
Grievant is married to the individual controlling the corporation, and that the
Grievant previously owned the property.
On September 7, 1999, the Grievant submitted a copy of a document
purporting to be a lease of [the property in] New Albany, Ohio. The lessees are
Grievant and his wife, and the lesser is M__. The document is dated August 30,
1999. Grievant admits that he entered into the lease solely for the purpose of
satisfying a requirement of the Commission. However, the Grievant was clearly
informed by the Commission that a deed or lease must include a notarized
statement affirming that the property described in the deed or lease is the
principal residence of the employee. No such statement was submitted by the
Grievant. Thus, even if the Commission had reconsidered the issue of Grievant's
residency, it is unlikely that the reconsideration would have resulted in a
different conclusion.
Additionally,
Grievant has long contended that he paid no rent to live in his mother-in-law's
condominium. At the Commission hearing, M__ testified that Grievant and his
wife did not pay any rent. These representations of Grievant and M__ conflict
with the terms of the lease that require rent of $300.00 per month. Given the
Grievant's failure to submit a notarized statement, and the conflict between
the terms of the lease and the representations of Grievant and his
mother-in-law, the lease has little probative value.
The
collective bargaining agreement prohibits the use of “threats, lies, coercion
or promises” in an internal affairs investigation. The FOP correctly
points out that Sicilian posed as the Grievant to obtain verification that
Grievant contracted for utility services for the Perry County property.
Arguably, this information was obtained through the use of lies. However, the
information obtained was not material. The establishment of utility service is
consistent with Grievant's assertion that he used the property as a second
home.
The procedure
used in the Director's hearing did not violate Grievant's due process. There is
no evidence that the Director himself is required to be at the hearing. In
addition, making a prompt decision is not an indication that he failed to fully
consider all of the evidence.
Grievant's use of the New Albany address for such purposes as
banking and motor vehicle registration does not constitute sufficient evidence
of residency in comparison to the abundance of evidence indicating that
Grievant's primary residence was outside of the mandatory residency area. The
evidence does not show that the investigation was unfair or prejudicial the
Grievant. Grievant had ample opportunity to refute the allegations made against
him.
The
Arbitrator must conclude that the Grievant did not meet the residency
requirement established by the City. His discharge was for just cause and did
not violate the collective bargaining agreement.
The Arbitrator also finds that the City did not meet its burden of
proof in showing that Grievant was untruthful during an internal affairs
interview on or about May 25, 1999. While the Arbitrator questions the overall
credibility of the Grievant, the allegation by the City is based on a specific
interview. The City had the burden of proving that he knowingly made a false
statement during an internal affairs interview on or about May 25, 1999. There
is insufficient evidence to show that Grievant was untruthful during the
interview.
The grievance must be partially sustained.
The grievance
is partially sustained. Grievant was terminated by the City of Columbus for
just cause because he did not comply with the mandatory residency requirement
for police officers. The City of Columbus failed to prove that Grievant was
untruthful during an internal affairs investigation on or about May 25, 1999.
The charge of untruthfulness must be expunged from Grievant's personnel
records.
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