Arbitration Award
and
Port
Arthur Police Officers Assn.
117 LA (BNA) 760
July 20, 2002
Harold E. Moore,
Arbitrator.
Issues
Was the Grievant terminated for proper cause? If not what is the
proper remedy?
Facts
On July 13, 2001, C__ complained to the Port Arthur Police Department
that the Grievant sexually assaulted her. The Grievant was indicted by the
Jefferson County Grand Jury on September 20, 2001 and accused of sexual
assault, which is a second degree felony. He was placed on Temporary Suspension
on the same day. The Grievant was tried and found not guilty of the offense of
Sexual Assault on February 28, 2002. He was Indefinitely Suspended (terminated)
on March 25, 2002.
The indefinite suspension
letter charges the Grievant with eight violations of Civil Service and
Department Rules, which may be summarized as follows:
1.
Conduct prejudicial to good order.
2.
Lack of good moral character.
3.
Unbecoming Conduct on or off duty.
4.
Immoral Conduct.
5.
Public lewdness.
6.
Allowing a condom wrapper to be thrown in a parking lot of a public park.
7.
Throwing a condom out of his car onto a public street.
8. Intentionally, knowingly or recklessly rolling a vehicle window up on C__ causing injury or pain without her consent.
The hearing developed the following facts:
After completing his work shift, the Grievant went to a bar and
met C__ who had come to the bar with her friend who was referred to as her “God
sister”.
The Grievant and C__ consumed alcoholic beverages. According to
the Grievant they agreed to “hook up” after C__ would go home with her God
sister. After several stops by C__ and the God sister at convenience stores,
C__ went into her house.
Shortly after C__ arrived at her house, the Grievant drove up in
front of C__ 's house. C__ left her house and entered the Grievant's truck. The
Grievant drove to a public park at Pleasure Island making several stops at
intersections. The park was closed, but the Grievant entered the park through
the “exit do not enter” opening. The public park is within the Grievant's
normal patrol area. The Grievant parked his truck in the parking lot adjacent
to a playground.
According to the Grievant,
he had consensual sex with C__ initially in the front seat of the truck and a
second time in the back seat of the truck. According to C__ they only had sex
one time and that was in the back seat of the truck. C__ removed her clothes
prior to getting into the back seat. C__ testified in the criminal trial that
she was not raped, and she acknowledged that fact in the arbitration hearing.
The Grievant and C__ both acknowledged that they had engaged in consensual
sexual intercourse on several occasions prior to July 13, 2001.
According to the Grievant
during the sexual encounter he was playing with the automatic window device and
C__ 's head fell out the window. According to C__ the Grievant deliberately
rolled the window up causing pain to her neck and causing her to bite her hand.
According to the Grievant, C__ threw the condom wrapper out of the window. C__
maintained that the Grievant told her to throw the condom wrapper out of the
window onto the playground parking lot. After the sexual encounter at Pleasure
Island, the Grievant drove C__ home. As she exited the truck, he kissed her on
her cheek and she went into the house.
C__ 's God sister drew a bath for her and she fell asleep in the
bathtub. Later in the day C__ 's and the God sister mentioned the incident at
Pleasure Island to the baby sitter who worked for the City. Twelve hours after
returning home C__ went to the police station and reported the matter. C__
submitted to a SANE examination, which is administered to rape victims, which
indicated that she had three abrasions in the vagina. The report also reflected
under “Clinical Impression” that the terms and words circled were “Alleged
Assault, strain and neck.”
When confronted with the
accusations, the Grievant went with the investigator to retrieve the condom
wrapper at the playground parking lot, located the used condom on a City
street, furnished the clothing he was wearing that night for investigation, and
relinquished his vehicle to the Police Department's crime lab.
City's Arguments
The City argues that the criminal trial of the Grievant dealt with
one allegation of sexual assault. They point out that the burden of proof in a criminal
trial requires that the State prove that a crime was committed beyond a
reasonable doubt. Whereas, this case involves a human resources or industrial
relations matter and is conducted under the rules and the regulations of
Chapter 143 of the Texas Local Government Code and the Collective Bargaining
Agreement between the Employer and the Union. The arbitrator is not obligated
to accept the decision of other tribunals, for if he or she were to do so,
there would be no need to have a hearing. (City of San Antonio and CLEAT [D__ ]
AAA 71 390 00161 96 [September 15, 1997] Moore). They emphasize that the Trial
Judge was not presented with the same evidence that the arbitrator was
presented with and therefore the arbitrator should make an independent judgment
of the evidence.
The City also asserts that
there were considerable inconsistencies between the Grievant's version of what
occurred and that of C__ . This raises a cloud of suspicion upon the
truthfulness of the Grievant. The City points out that truthfulness is an
important element of performing police work.
The City maintains that the
Grievant admitted he had sex with C__ in a public park in an area typically
within his duty beat. He also admitted that he did not attempt to prevent C__
from throwing the condom wrapper onto a public park, nor did he pick it up
after she threw it out of the vehicle window. These actions constituted
littering. Also, the throwing of the used condom out of the vehicle window onto
a public thoroughfare reflects his lack of knowledge of State law and City
ordinances, as well as his disregard for the integrity of the streets and parks
in a primarily residential area.
The City further argues that the Grievant perpetrated a physical
assault upon C__ when he intentionally rolled her neck up in an automatic car
window. They point out that C__ testified that it was no accident. She also
testified that it caused her pain and injury to her neck as well as to her
hand. The City points to the discovery of C__ 's fingerprint on the driver side
door rain deflector of the Grievant's vehicle. The City also points to the
numerous witness who testified that they observed marks on C__ 's neck and hand
that gave credence to her description of what occurred.
In addition to the above, the City emphasizes what they
characterize as the demeaning manner of speech of the Grievant as claimed by
C__ during the criminal trial. The City maintains that these actions are
consistent with the power and control issues that are associated with sexual
assault. The Grievant is a large person and C__ is a very small woman. Because
of this difference in stature C__ followed his instructions.
Concluding its argument, the City emphasizes that the three-member
disciplinary review board recommended to the Chief of Police that the Grievant
be indefinitely suspended. Other officers opined that the Grievant should be
terminated. And, due to the fact that the Grievant had only been in the
department seventeen months when the incident occurred, termination was
proper.
Union's
Arguments
Counsel for the Grievant
argued that the Grievant admitted he had consensual sexual activity in his
private vehicle in a public park in the early morning hours of July 13, 2001.
However no one heard it, viewed it, or complained about it to anyone, except
for C__ . It is pointed out that the City was able only to prove what the
Grievant had admitted in his statement and testimony. In addition it was argued
that such affairs exist in the private lives of countless individuals everyday.
Counsel gave examples where it occurred with other members of the Police
department and they were not terminated.
The Grievant pointed to the credibility and motive of C__ . His
counsel emphasized that credibility is determined from the consistency in a
witnesses 'testimony compared with prior statements, testimony, and the
witnesses' demeanor while testifying, motivation and reputation. The following
discrepancies were emphasized. C__ had engaged in sexual activity on several
occasions with the Grievant just prior to the incident. C__ asked for money to
pay her light bill, and the Grievant had refused her request. During the trial
she admitted that she was not behind on her light bill and it was a lie to see
if the Grievant would give her any money. C__ testified that she went from her
house to the truck because the Grievant was honking the horn. The other
witnesses testified that they did not hear any horn honking in front of the
house before C__ got in the vehicle. C__ said she did not have her purse when
she got into the vehicle. Other witnesses stated she took her purse with her
when she went from the house to the Grievant's vehicle. C__ testified that she
was not smoking when she got out of the truck after returning from Pleasure
Island. C__ 's God sister testified that she was smoking.
The Grievant points out
that the medical records do not reflect that C__ had any marks, swelling or
redness on any area of her throat, neck or her back. It is argued that the
photographs of C__ 's neck and her left hand do not reflect any marks
consistent with being rolled up in the driver's side window of the Grievant's
vehicle for three to five minutes as she claimed in her testimony. The Grievant
also points to C__ 's testimony that it was her right hand that was in her
mouth when she claimed that the Grievant rolled her up in the vehicle window
when reports reflect that she initially claimed that it was her left hand.
The Grievant maintains that the SANE examination only revealed
that C__ had tears in folds of her inner vagina, consistent with both force
penetration and normal sexual activity. Further they point out that C__
testified that she was not complaining about the sex she had with the Grievant.
Therefore, the sexual activity was consensual.
Counsel for the Grievant argues that the other offenses are mala
prohibita—criminal laws stemming from outlawed activity, which is not morally
reprehensible under the common law, but are, violations of state law and city
ordinances. The admissions by the Grievant do not make him a morally deficient
individual. Further it is argued that having sex in the park and/or having an
affair is not consistent with the prior history of discipline in the
department. The Grievant agrees that he engaged in a series of poor personal
choices and he accepts the blame. The Grievant requests that he be reinstated
with all back pay and accumulated benefits.
Discussion
Initially the underlying charge against the Grievant, involving
the aggravated kidnapping and sexual assault, must be addressed. The Jefferson
County Criminal District Court acquitted the Grievant of the felony offense of
sexual assault. The City
is correct in its argument that the burden of proof in a criminal case requires
that the state prove its case beyond a reasonable doubt. This is more difficult
than the preponderance of evidence or clear and convincing evidence
requirements that is generally found in arbitration cases involving industrial
relations or human resource matters. (Fn. 1) Therefore, the fact that the Grievant was
acquitted in the criminal aspect of the charge is not dispositive of the
matter.
Under the lesser requirements of the preponderance of the evidence or clear and convincing rules, the City failed to show that the sexual incident was non-consensual for the following reasons: The alleged victim testified during the criminal trial that she was not raped and verified the same in her testimony in the arbitration hearing. The alleged victim testified that upon returning home from the bar at approximately 2:00 AM she went into her house where she was with her God sister and an adult male baby sitter. She left the safety of her home to talk with the Grievant. The two City witnesses disputed her testimony that she did not take her purse with her. If we are to believe the two non-participating witnesses that the alleged victim took her purse with her when she left the house this is an indication that the alleged victim intended to go with the Grievant. The alleged victim testified she got into the Grievant's vehicle on the passenger side. If her motive was to talk to the Grievant it would appear that she would do so on the driver's side. Her explanation that she did not want to be out in the street because of traffic is not plausible at 2:00 AM on a residential street. Her explanation that she could not get out of the vehicle while she was being driven to Pleasure Island is questionable. She admitted that the Grievant was required to make several traffic stops before crossing the bridge to Pleasure Island. She did not avail herself of the opportunity to open the vehicle door and exit.
When questioned at the
trial and the arbitration hearing, she gave as the reason for performing
various acts such as, undressing herself, getting into the back seat of the
vehicle, and throwing the condom wrapper out of the vehicle window as “He told
me to!” is difficult to comprehend that they are acts of a non-consenting individual.
These are but a few of the discrepancies in the statements made by
the alleged victim. Contrasting her statements with those initially given by
the Grievant that the two of them engaged in consensual sexual activity when he
was first accused seems to bear out his description of the episode. Although
the Criminal District Court of Jefferson County, Texas did not give any reasons
for finding the Grievant not guilty of the offense of Sexual Assault, this
arbitrator, after hearing and reviewing a substantially larger quantity of
testimony and documents, concurs in that decision and finds that the Grievant
and the alleged victim engaged in consensual sex.
Regarding the injuries the alleged victim claimed she received
during the episode, the evidence reflects that the medical reports do not
definitively reflect that there were marks on her neck and arm. I have studied
and examined the excellent and detailed photos submitted by the City. Exhibits
23, 24, and 25 have the clarity to distinguish the hair on the neck and the
arm. Perhaps it may be the skin tone of the alleged victim but bruises and
marks are not discernible. This is in contrast to City witnesses who testified
that they observed handprints on the alleged victim's arms. There also is contradicting
testimony that the alleged victim initially claimed that her left hand was
injured when the window was rolled up, yet at the hearing she maintained that
it was the right hand that was injured. The SANE examination revealed three
abrasions in the alleged victim's inner vagina. The City's expert witness
testified that these could have occurred during exuberant sex. The alleged
victim's God sister testified that after the alleged victim filed a complaint
she began inquiries regarding victim's compensation. The alleged victim told
her that she would have so much money that she wouldn't know what to do with
it. When there are such discrepancies equity dictates that the doubt must be
resolved in favor of the accused.
The other charges against
the Grievant involve littering, public lewdness, immoral conduct and the lack
of good judgment. As to the littering charge the Grievant admitted he threw the
used condom on a public street. He also admitted that he did not prevent the
alleged victim from throwing the condom wrapper out of his vehicle window. It
is difficult to sustain a public lewdness charge when no one saw the Grievant
and C__ in the park, particularly when a complaint has not been filed. In our
current society it is difficult to define immoral conduct and to what the
extent an employer may direct what an employee may do when the employee is off
duty.
The City has shown from the
preponderance of the evidence that the Grievant exercised poor judgment. The
City has the right to expect police officers to exhibit respect for State laws
and City ordinances. The Grievant had previously been counseled regarding
drinking in bars located in his work beat. The location of the sexual encounter
with the alleged victim occurred within his work beat. He gained entrance to
Pleasure Island by nature of his knowledge of his work assignment. The
Grievant's actions brought unwelcomed publicity upon the Department. All of
these offenses warrant progressive disciplinary action but they do not warrant
termination.
AWARD
The Indefinite suspension shall be reduced to a
one hundred and twenty (120) days suspension without pay.
Footnotes
1. See How Arbitration Works, Elkouri & Elkouri, 5th Edit., pp. 905 - 908, and 1999 Suppl. p. 143 (BNA Books).