In re
City of Columbus, Ohio
and
Capital City Lodge No. 9
116 LA (BNA) 1672
FMCS Case No.
01/07379
February 5, 2002
James C. Duff, Arbitrator*
*Selected by parties through procedures of the Federal
Mediation and Conciliation Service
A document introduced at the Arbitration Hearing is
reproduced here for convenience in order to outline the claim under review in
this forum as follows:
DIVISION OF POLICE
Intra-Divisional
December 11, 2000
TO: Deputy Chief Robert R. Kern #5002 Patrol West
Subdivision
FROM: Sergeant David A. Sicilian II #5182 Accident
Investigation Unit
SUBJECT: Off-Duty Employment
Sir:
I,
hereby, am requesting approval to engage in off-duty employment. This will be
an annual request commencing January 1, 2001 through December 31, 2001.
The
nature of this employment consists of functioning in the capacity of a
private investigator in my own private
business. It is independent of police authority and my current position with
the Division of Police. I will be performing these duties under a professional
license pursuant to O.R.C. Section 4749.
I will abide by the applicable
guidelines contained in Division Directive 3.17. This Off-Duty employment will
not conflict with the duties of my current position within the Division of
Police.
Respectfully submitted,
/s/ Sergeant Daniel A. Sicilian II #5182
Accident
Investigation Unit
/das/
Relevant Portions of
the Collective Bargaining Agreement
ARTICLE 2
AGREEMENT
* * *
2.7 Past Benefits
and Practices
(A) The City agrees
to continue all existing practices and benefits during the term of this
Contract. The Chief of Police shall determine all past practices and benefits;
however, if the Lodge disagrees as to whether a past practice or benefit does
exist, the parties will first attempt to resolve the problem through the Labor
Relations Committee process. Failing to reach an agreement in the Labor
Relations process, the Lodge may file a grievance over the matter and take the
question through the grievance procedure for a final and binding decision by an
arbitrator as to whether or not a past practice or benefit exists.
ARTICLE 7 MANAGEMENT
RIGHTS
7.1 Management Rights. Except to
the extent otherwise limited or modified by this Contract, the City retains the
right and responsibility, regardless of the frequency of exercise, to operate
and manage its affairs in each and every respect. These rights and
responsibilities shall include, but are not limited to:
(A) to determine the
organization of the Division of Police;
(B) to determine and
change the purpose and extent of each of its constituent subdivisions;
(C) to exercise control and
discretion over the organization and efficiency of operations of the Division
of Police;
(D) to set standards for service to be
offered to the public;
(E) to direct the
officers of the Division of Police, including the right to assign work and
overtime;
(F) to hire,
examine, promote, train, transfer, assign and schedule officers in positions
with the Division of Police;
(G) to suspend, demote,
discharge, or take other disciplinary action against officers for proper
cause;
(H) to increase,
reduce or change, modify or alter the composition and size of the work
force;
(I) to determine the
location, methods, means and sworn personnel by which operations are to be
conducted;
(J) to change or
eliminate existing methods of operation, equipment, or facilities;
(K) to create,
modify or delete departmental rules and regulations;
(L) to take actions
as may be necessary to carry out the mission of the Division of Police in
emergencies;
(M) to train or
re-train officers as appropriate;
(N) to maintain and
improve the efficiency of the Division of Police; and
(O) to specify and
determine where, when, and how officers will use tools, vehicles, supplies,
equipment, uniform clothing and protective gear.
These inherent managerial functions, prerogatives, and
policy-making rights, whether listed above or not, which the City has modified
or restricted by a specific provision of this Contract are subject to the
Grievance Procedure contained herein.
ARTICLE 12 GRIEVANCE PROCEDURE
* * *
12.7 Grievance
Procedure. . . .
(F) Step
Five—Arbitration.
* * *
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, 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.
* * *
The above-quoted
request for approval to engage in off-duty employment was denied by the City of
Columbus Division of Police. The propriety of that denial is under challenge
via this arbitration and it is necessary to reference certain of the Division's
“Directives” in order to review this matter. Germane portions of such
Directives are accordingly copied here as follows:
Columbus Police
Effective Revised Total Pages
Division Directive
Aug. 1, 1987 Jan. 15,
2000 10
Rules of Conduct
1.01 Obedience to Laws and Ordinances
Division personnel are to obey the Constitutions of the
United States and the State of Ohio and all federal, state, and local
laws.
1.02 Knowledge of Directives, Laws, and Ordinances
Division personnel
are to be thoroughly familiar with Division rules, policies, directives,
orders, and city, state, and federal laws that pertain to their
employment.
1.03 Violation of Rules or Division Directives
A. Division
personnel are not to commit or omit acts in violation of the explicit or
implicit purpose of the Rules of Conduct, Policies, Directives, or orders of
the Division. It is not necessary that every specific act which would
constitute a violation be expressly prohibited in written form.
B. The Rules of
Conduct are the most authoritative directives issued and will be the basis for
formal disciplinary action.
* * *
1.27 Interference in
Private Business
Division personnel
are not to interfere in the private business or affairs of another, other than
in the course of official police business.
* * *
* * *
Columbus Police
Effective Revised Total Pages
Division Directive
Aug. 1, 1987 Jan. 25, 2001 10
Secondary Employment
Cross Reference: ...
...1.42, 2,08, 2.14, 3.09
I. Introduction
In order to avoid
any real or perceived conflict of interest due to an individual's employment
with the Division of Police, secondary employment regulations must be
established. These regulations are designed to protect both the Division and
its personnel.
II. Definitions
* * *
C. Secondary
Employment
1. Any work done in
return for wages or anything of value, in the form of self-employment or with
an agency other than the Division of Police. This includes any business,
corporate interest, or partnership that results in a financial benefit to the
involved individual. Secondary employment is divided into two types:
a. Special Duty
Uniformed or
plainclothed employment evolving directly from the authority granted to an
individual by virtue of being a sworn law enforcement officer with the Division
of Police.
b. Off-Duty
Any employment or
business interest that is independent of police authority.
* * *
III. Policy
Statements
A. General
1. Division
personnel will be permitted to engage in secondary employment as long as no
conflict exists between the secondary employment and the individual's
employment with the Division, unless prohibited by Division Rules, Policies,
Directives, or orders.
* * *
3. Prior permission
to engage in secondary employment is required.
* * *
12. Personnel
engaged in special duty work are subject to Division Rules, Policies, Directives,
and orders. All lawful orders or directions issued by a Division of Police
supervisor are to be obeyed even though a conflict of duties may arise
involving the person or company employing the special duty officer.
* * *
14. On duty
personnel are not permitted to request, review, search, copy, remove, or
forward any information from any record, report, or file in connection with any
special duty work.
* * *
Inasmuch as similar
requests to engage in secondary employment had formerly been granted by the
Columbus Division of Police, Sergeant Sicilian and the Fraternal Order of
Police Capital City Lodge No. 9 chose to contest this denial
through this arbitration.
The Fraternal Order of Police
Capital City Lodge No. 9 insists that denial of Sergeant Sicilian's request was
an improper exercise of discretion by the Division of Police because his
request presented no genuine conflict with his regular duties as a Police
Officer and that the nature of the employment he sought would not necessarily
interfere with any private business or affairs. It accordingly urges the
undersigned impartial Arbitrator to direct the City to make Sergeant Sicilian
whole for any loss he has improperly sustained and prospectively grant
secondary employment requests as it had in the past without undue restrictions.
The
Columbus Division of Police asserts that its Chief had ample legitimate
rationale for denying Sergeant Sicilian's request and prohibiting private
investigation work by its Police Officers. It submits that the nature of
private investigation work is replete with the possibility of conflicts of
interests for City Police Officers and potential appearance of impropriety. It
believes that it has exercised unfettered discretion regarding such matters in
the past and retains the latitude to do so now and in the future. The City
therefore requests that the grievance be denied.
It is important to note at the
outset here that the City has agreed to continue all practices and benefits
during the term of the current Collective Bargaining Agreement. However, it has
also expressly retained the right and responsibility, regardless of the
frequency of exercise, to operate and manage its affairs in each and every
respect. Obviously, individual factual scenarios can generate tension
between these divergent contractual provisions which are respectively set forth
in Articles 2 and 7 of this Labor Agreement.
The City's “inherent
managerial functions, prerogatives, and policy-making rights” are expressly
made “subject to the Grievance Procedure...”. The Columbus Division of Police
Chief, James Jackson, testified that with respect to the City's concerns and
the interests of the citizens, “Rule 1.27 supersedes.” That rule is copied
above and it nominally proscribes any “interference in Private Business.” So
far as the available information indicates, however, that rule has not been
invoked so as to preclude the kind of off-duty employment Sergeant Sicilian
sought to engage in, at least in blanket fashion. Quite on the contrary, both
he and other Officers have received prior permission to engage in private
investigations as secondary employment.
So long
as Officers so engaged have not performed law enforcement functions or
attempted to or actually encroached upon private rights by using their police
authority in any fashion, they have been permitted to do private investigation
work. Sergeant Sicilian has been permitted to do this work in the past and
there is no suggestion on record that he somehow abused that privilege in any
respect, put himself or the City in any conflict of interest situation, or
improperly interfered with the interests of any private business or affairs
whatsoever. The mandates upon which the City relies here are utterly
inapplicable to the facts and no blanket denial of permission was warranted
based upon anything the Chief imagined as a potential problem.
Sergeant Sicilian and other Police Officers who seek to
engage in private investigation work must, of course, ever be vigilant that
their activities pose no genuine conflict of interest with their duties or even
give any appearance of such conflict. They must be thoroughly familiar with and
follow all Division rules, policies, directives, orders, and city, state and
federal laws that pertain to their employment. Nonetheless, the Chief's order
banning private investigation work per se goes too far.
Sergeant
Sicilian's request should have been granted, with appropriate restrictions
and/or cautions if the Chief deemed them to be necessary to protect the City's
interests.
The grievance has merit and it is accordingly granted. The
undersigned impartial Arbitrator retains jurisdiction to fashion appropriate
relief to make Sergeant Sicilian and/or any other affected Officer whole, if
the Parties are unable to amicably do so, for six (6) calendar months from this
date.