Arbitration Award
|
City
of Cooper City, Florida
and
Broward
County Police Benevolent Association
118
LA (BNA) 842
FMCS
Case No. 020814/04630-3
May
3, 2003
Robert
B. Hoffman, Arbitrator*
The City of Cooper City Florida (“the City”) terminated B__ (“the
grievant”), a police officer, for engaging in misconduct during the midnight
shift on February 10, 2002 in violation of City Police Department Rules. The
City contends that the grievant’s departure from his regular assignment to meet
two other officers outside his regularly assigned zone for over one hour
constituted malingering, and his Daily Action Report (“DAR”) was written in a
fictitious manner to cover his tracks. In light of a previous warning
concerning malingering and falsification of reports the City maintains that it
made a reasonable decision to terminate the grievant.
Broward County Police Benevolent Association, (“the Union”) contends
that the grievant did not violate any rules. The grievant had a right to be at
this location for a meal break and to assist other officers in patrolling this
area. The grievant was advised that the previous discipline would be treated as
if the grievant was starting with a clean slate. To use it as progressive
discipline is misplaced. Moreover, the grievant was treated disparately when
compared to other officers who engaged in similar conduct. At issue is whether
there is just cause under the parties’ collective bargaining agreement for this
termination, and if not, what shall be the remedy.
The City, with a population of
29,000, covers eight square miles in Broward County, Florida. For purposes of
police patrolling, the City is divided into four zones. During the midnight
shift, one officer is assigned to each zone to patrol by car. Officers are
expected to remain primarily in their assigned zones, but may go to other zones
to patrol businesses that can overlap zones, such as shopping plazas, or when
needed to back-up other officers in need.
1. February 10, 2002
The grievant, a police officer
with the City since December 1996, was assigned on this date to the midnight
shift and to patrol in zone 3. He recalls that at the 10:45 p.m. roll call
Sergeant Brown mentioned some ongoing criminal mischief and burglary concerns
at Country Glen, a gated residential community at the far west end of the City
in zone 4. Officer C__ was assigned to this zone. According to the grievant,
Brown asked all officers “at some point through the night, to make sure you
drive through there and document it on your sheet.” The two other zones were
assigned to officer B. Brown to zone 1 and officer L__ to zone 2.
Sergeant Brown did not recall
making any assignment to patrol Country Glen, other than to the assigned
officer on February 10. Although there had been a rash of thefts in this area,
if he assigned other officers to patrol he would specifically set forth these
assignments in the Supervisor’s Daily Shift Report. This report gives specifics
of what was assigned and the topics discussed in the roll call prior to the
start of the shift. Under “special shift duties” in his report for February 10
there are references to officers making “interior zone patrol[s], plaza checks,
[and checking the] Griffin Road construction site.” There is no reference to
patrolling at Country Glen. “Interior” patrols occur inside a residential gated
community as part of regular zone assignments. Brown discussed a number of
other items before the shift started, including “vehicles, detention, sally
port and zone books.”
A Complaint Log Shift Report
shows dispatch times officers received complaints and gave radio dispatch for
their movements to the department’s dispatch service at Broward Sheriff’s
Office (“BSO”). The February 10 report shows that Officers C__ , L__ and the
grievant went to a stakeout in zone 2. BSO received a dispatch call at BSO at
12:21 a.m. When Sergeant Brown learned that three of his officers were at this
one stakeout at the same time, and without his permission, he ordered them to
discontinue it and return to their assigned zones. The dispatch record shows
that the stakeout was discontinued at 12:24.1
The grievant testified that
sometime after this stakeout ended he called phone with L__ and C__ on his
cell. He proposed that the three of them meet in one place and suggested
Country Glen in zone 4. He believed that during the roll call Sergeant Brown
had referred to all officers checking out Country Glen. They agreed to meet
there at a certain time and “walk around.” In the meantime the grievant went to
his zone and patrolled the Embassy Lakes development. About 2:00 a.m. he called
ahead to Miami Subs and placed a food order for himself. He left zone 3 at 2:25
a.m. picked up the food and arrived at Country Glen, about seven miles, five to
seven minutes later.
According to the grievant when he
arrived at Country Glen L__ and C__ were already parked side by side in an
empty lot next to a house under construction at the far end of the
development.2 The grievant stated that he patrolled in his vehicle for “a few
minutes” before finding L__ and C__ . He pulled up next to their two cars and
offered C__ some of his food. It was about 32 degrees outside. Each officer sat
in his car. The grievant
maintains he was on his 30 minute meal break when, about 15 minutes later, he
noticed Sergeant Brown arrive in his vehicle. He knew it was Brown because the
vehicle had two blue lights indicating a supervisor’s car. Sometime later, L__ called
the grievant on his cell and asked what Brown was doing there. In
cross-examination the grievant stated that he called L__ . Cell phone records
show that the grievant made an outgoing call at 3:14 a.m. and another call is
shown at 3:19.3 The grievant then saw C__ leave his car and walk over to Brown.
C__ left the area moments later, as did L__ .
C__ testified that he estimated they had been in the area for about an
hour before Brown pulled up. At first he was uncertain whether it was a car leaving or coming
into the area. He had his glasses off and could not see clearly, so he asked L__
if it was the grievant leaving in his car. He learned that it was his Sergeant’s
car.
The guard at the gated entrance testified that about 3:00 a.m. Sergeant
Brown came to the Country Glen gate. Brown asked what was happening there. The
guard related that everything was normal but three police officers had entered
a while ago. Brown asked when this occurred. The guard stated that two of them
came in at the same time and the third one arrived about two minutes later.
They had been there “about 45 minutes.” In a statement given after the
termination he related that they had been there between 45 minutes and one
hour.
Sergeant Brown testified that he
pulled up to the gate about 2:50 a.m. The guard told him that three of his
officers had arrived about one hour earlier. Brown became concerned; he had not
received calls from them, he had not been told by dispatch of this joint patrol
nor had he given instructions to patrol this area, except for C__ who was
assigned to zone 4. He drove into the development in search of his three
officers. Finally he located them in the farthest reaches of this community in
an empty lot next to a construction site.
Brown discovered that these officers were parked in their vehicles side
by side with their lights off. He pulled within 20 to 25 feet of them, parked
and shut off his motor. He noted his arrival at 3:02 a.m. He sat there
initially expecting them to make some sort of contact with him. In this
darkened area he could make out silhouettes in the cars. C__ had his head
reclined against the vehicle’s headrest. The grievant was not moving at all in
his vehicle. L__ was motionless and also reclined against his headrest. He
believed they were sleeping. To be certain he decided to wait for a period to
see if he could detect some movement. They remained still for almost 20 minutes.
Finally, according to Brown, he
observed C__ move his head and adjust his body. C__ reached out of his vehicle
and made a gesture to L__ . Brown could hear some voices. Immediately
thereafter he heard a cell phone ring and saw movement in the grievant’s car.
At 3:25 a.m. C__ left his vehicle and approached Brown. He asked him what was
up. Brown replied that it looked like a convention here. C__ said that they
were just “taking a little break.” C__ then returned to his vehicle. A few
minutes later he drove toward the Sergeant and told him that he would see him
later. L__ then followed him in his car.
The grievant testified that after
L__ and C__ left he called Brown. The Sergeant related that the grievant waited
ten minutes after they departed and then called him at 3:34 a.m. The grievant
first asked Brown whether he was “surveilling” him? Brown replied that there
were only two of them there, “so the question is are you surveilling me?” Brown
added that he had a job to do and the grievant responded, “whatever Jerry.” 4
The grievant then drove away and as he passed Brown, with his tires were
spinning hard in the dirt, he shouted something to Brown that could not be
deciphered.
At the start of the next shift
Sergeant Brown told the three officers he intended to document the incident at
Country Glen. The grievant told him he was entitled to a break and he had done
nothing wrong. He was upset because Brown had chose to “surveil” him, he was
being “targeted” and his attorney would hear about this situation. He would
have had more respect for the Sergeant if he had “handled things differently.”
He suggested that Brown should have tapped on his window and given a verbal
reprimand.
The grievant completed his Daily Activity Report (“DAR”) and wrote that
he was “patrol/40” from 0230 to 0330 at Country Glen. A “40”is code for a
dinner break.5 After reviewing this DAR Sergeant Brown reported to the Chief
that the officers violated department rules. They were negligent and
inattentive to their duties and responsibilities. They failed to recognize his
presence and placed themselves and other members of the shift in jeopardy by
being in this area together. They were unresponsive and showed a lack of proper
discretion for their safety, the citizens of the City and their shift members.
Sergeant Brown added that the grievant’s DAR was inaccurate, false or
had improper information. Despite designating a meal break and patrol at
Country Glen between 0230 and 0330, Brown observed the grievant from 0302 hours
until 0335 hours. He did not see him patrolling or having his lunch. There was
no radio dispatch that he or the others were on a meal break. On February 27, 2002 the
grievant was notified of a pre-determination hearing. The department was
considering that his actions violated some five rules and one General Order
relating to sleeping on duty.
The pre-determination hearings before Chief Werder were held on March
13, 2002. He reported that C__ acknowledged, “we were hanging out . . . it was
too long in one area.” C__ had no previous misconduct discipline. His record
showed a written reprimand for an accident in January 2002. He had letters of
commendation. For the February 10 incident he received a three-day suspension
for neglecting duty and a written reprimand for an inaccurate and untruthful
report. The Chief found that “residential patrol” from 2:29 to 3:31 conflicted
with the observation of the security officer at the gate who placed their entry
at 2:00 a.m. They could not have been on patrol when they were observed
stationed side-by-side.
Chief Werder found that L__ was not asleep; the phone log showed that the
grievant initiated a call at 3:14 and L__ had a return call at 3:19. L__ borrowed
C__ ‘s laptop so he could play pinball, which he did for most of the time he
was there. He did not hear Brown pull up because he was concentrating on the
pinball game. L__ disclosed at his hearing that he did not know how long
Sergeant Brown had been there; he told C__ that Brown should talk to them
first. L__ believed Brown was following him. L__ ‘s DAR showed that he, too was
on patrol from 2:28 to 3:25 and he was eating a meal. L__ stated at this
hearing, according to the Chief’s report, that “they could have been raping and
pillaging in my zone and I wouldn’t have known.” Although L__ had six commendation letters, he also had
three oral reprimands and a one-day suspension, including recent incidents
where he did not answer his radio. The Chief cited neglect of duty and conduct
unbecoming rules for L__ ‘s termination recommendation. This officer was also
under investigation in another matter for which the Chief also recommended
termination. L__ did not testify at this arbitration.
The grievant contended at his
pre-determination hearing that he did nothing wrong.6 The Chief agreed with him regarding the General
Order relating to sleeping and being alert. But found that he violated rules
relating to meal or rest breaks, department reports, unbecoming conduct and
neglect of duty. The Chief considered a number of commendations from the public
but still recommended termination, which was ultimately accepted. He concluded
in his report:
The recommendation of termination is
based upon the facts of this case, viewed in the light of the last sentence of
your previous suspension, which stated: “An additional event or episode of
malingering or misrepresentation in the future shall result in a recommendation
of termination.” What transpired on the night of February 10, 2002 is clearly
another case of malingering. The intentional inaccuracies contained in two entries
on your departmental activity sheet also confirms your misrepresentation of the
truth, as you knew it . . . .
2. Grievant’s February 2001
Discipline
An Internal Affairs investigation concluded in February 2001. The
grievant received a five-day suspension. It was thereafter reduced in an
addendum to three days. As seen, the grievant was warned that termination shall
result if another incident of malingering or misrepresentation occurs. The
grievant had misrepresented his physical condition regarding a knee injury to a
doctor and to workers’ compensation. He claimed that he could not work at all,
even light duty. He stated that medication prevented him from driving. As a
result, he was able to stay off work and remain in full pay. During this period
he was observed by a Captain outside the City driving a vehicle to a bar, a
restaurant and to shops. He walked over curbs, climbed in and out of his
vehicle without a limp. He did not need the use of any cane or device for
assistance. Later on when the grievant later saw investigating officers he
retrieved a crutch from his car trunk and walked with an exaggerated limp.
The addendum to the five-day
suspension resulted from mitigating evidence presented by the Union to the
Chief. The Chief stated that these factors “. . . did not mitigate the serious
nature of your actions nor diminish the resulting effect on this organization.”
He found that these factors affected only “the amount of the disciplinary
action.”
At this arbitration hearing the
grievant related he accepted the reduction to three days “to be done with it.”
The Chief told him they were going to “put this behind us” and he could move
ahead in his career. This would be a “new beginning” or a “clean slate,” the
Chief told the grievant. The grievant disclosed that he could not recall
whether Chief Werder specifically told him that this discipline would not count
against him in future misconduct. The Chief denied telling the grievant there
would be a “clean slate.” If, as the grievant contends, he did not intend to
use the discipline against the grievant, it would have been a complete
forgiveness, the Chief testified, rather than a modification of the suspension.
None of the records make this statement.
C. Positions of the Parties
1. The City
This case involves the most basic principles of law enforcement,
honesty and integrity. The grievant failed to maintain and honor the City’s
reasonable expectations of a police officer. Instead of patrolling the City or
performing other police duties he simply sat malingering in his police vehicle
for well over one hour in the most remote/secluded corner of the City. Even
after he became aware that his supervisor had discovered him and two other
officers with him, he chose to engage in an arrogant standoff with his
supervisor. The grievant then wrote his DAR in a way that would cover up his
tracks. The grievant
says that he did nothing wrong. But it is wrong to hide out with two other
officers while on duty; it is wrong to falsify a report; it is wrong to treat a
superior officer with complete disrespect.
One year before this incident the
grievant was issued a disciplinary suspension for malingering and providing
false reports related to his injuries so he could avoid working while still
being paid. As part of this discipline the Chief expressly warned him in
writing that another event of malingering or misrepresentation “shall result in
a recommendation of termination.” Thus, the decision to terminate based on his
conduct in 2002 was viewed in the light of his recent similar misconduct
involving malingering and falsification of reports.
2. The Union
Although the City raised a few minor issues concerning the way the
grievant took his meal break or submitted activity reports, the City failed to
carry its burden that the grievant was neglectful, untruthful, failed to remain
alert, violated the meal or rest break rule or behaved in a manner unbecoming
to the City. Also, the grievant was treated in a disparate manner than that of
officers H__ , K__ , E__ , L__ and C__ . The City did not complete a fair, complete and thorough
investigation, even though it has consistently afforded such to others, as when
officer Grimes alleged that Sergeant Brown was observed sleeping on duty.
Numerous witnesses were interviewed unlike here. But because only one person
observed Brown sleeping the charge was not sustained. Here no statements were
taken, even from the grievant, before sustaining the charges and recommending
termination. It is clear that the City merely assumed wrongdoing and, in its
zeal to get the grievant, it failed to conduct even a minimum
investigation.
The City chose also to stack the
charges against the grievant and then raised issues that had nothing to do with
the alleged charges. There was no evidence to show that the grievant brought
discredit to the City, his colleagues, or that the residents of the City
harbored diminished respect for the grievant, the Department or the City.
Instead all of the evidence established that the grievant’s superior’s
considered the grievant to be a good employee.
The Union raises a number of issues in an effort to show that the City
failed to prove just cause for this termination.
1. Disparate Treatment; Fair Investigation Claims
Just cause requires an employer to apply its rules and penalties
evenhandedly and without discrimination. The prohibition against discrimination
requires like treatment under like circumstances. When penalties are considered it is generally accepted
that all employees who engage in the same type of misconduct must be treated
essentially the same, unless a reasonable basis exists for upholding the
variation. It has long been an arbitral principle that the circumstances of
each case must be considered to determine if the different treatment is
sufficient to prove disparate treatment. The burden rests with the Union to show that the
treatment is different. If no reasonable basis exists for differing penalties
for the same offenses, then disparate treatment is shown. However, if
for example, the circumstances show different degrees of fault, or prior
warnings for similar conduct or mitigating circumstances affecting some but not
all employees, a reasonable basis may exist for varying the penalties. A case
decided almost 50 years ago, which has been cited consistently by arbitrators,
very simply describes the rationale:
Two employees may refuse a work assignment. For one
it’s his first offense, there being no prior warning or misconduct standing
against his record. The other has been warned and disciplined for the very same
offense on numerous occasions. It cannot be seriously contended that
discrimination results if identical penalties are not meted out.7
The Union maintains that there
are many differences in the way this grievant was treated when compared to
others. There are officers with similar violations who received less
discipline. Even during the investigation the grievant was treated differently.
When Sergeant Brown was accused of sleeping on the job, the City questioned a
large number of witnesses, whereas in the grievant’s situation no witnesses
were questioned and no statements taken before the decision to terminate. Brown’s
allegation was not sustained because no one except the officer making the
accusation observed the Sergeant sleeping.
It is this City’s practice to not conduct an internal investigation
where a supervisor witnesses the misconduct. As will be seen in the K__ and S__ cases, supervisors were
the only witnesses and they were treated as personnel complaints. This means
that the witness statements normally taken in an internal investigation are
generally not done in this procedure inasmuch as management directly witnessed
the conduct. The City was consentient in handling this investigation in the
same manner. Still, does this consistency make it right? Due process as part of
just cause requires that an employer conduct a fair investigation, so that when
a decision is made involving discipline, the employee can be assured that the
facts were fairly and properly gathered and considered.
Information obtained before the Chief’s findings and recommendation on
April 15, 2002 constituted this investigation. Witnesses to this incident were
Brown, L__ , C__ and the security guard. Brown interviewed the guard twice on
February 10.8 Brown then provided a written statement of his observations to
the Chief on February 12, along with the grievant’s activity report, Brown’s
Daily Shift Report and a diagram of the scene where he discovered the three
officers and their vehicles. On March 6 the three officers and their representatives appeared
at a pre-determination hearing and provided extensive information about the
incident. Also, the Chief had gathered numerous commendation letters and notes
from superiors and the public for purposes of considering mitigation. His
recommendation does not appear to have been made hastily. The Chief took over
one month and ultimately issued detailed findings of fact and a reasoned
recommendation for the termination.
The Union has not pointed out who else should have been interviewed. At
his point all of the witnesses had been questioned about what happened. There
simply were no more witnesses. The Chief had all the information that could be obtained from
people who witnessed what occurred. Only after considering all of this evidence
was a recommended decision made to terminate. There is no due process
violation.9
The Union contends that as a result of the Chief’s failure to consider
records of other employees who were similarly situated, the City did not
establish just cause for the termination. The Chief had an obligation to
determine if the penalty to be imposed was consistent with other employees who
had similar offenses.
Simply not doing so by itself is not enough to warrant sustaining the
grievance, but it is evidence that raises concerns about how the grievant was
treated and the reasonableness of the penalty. The concern becomes serious if
in fact there are others who were treated differently, especially where the
circumstances are similar and there is no reasonable basis for the distinction
to be made.
The Union believes that if the Chief had looked at the personnel
records he would have found records of three other officers in similar
situations who had penalties less than discharge. The Union asserts that these
cases are sufficient to establish that the grievant received disparate
treatment. First, it points to Sergeant H__ who was charged with leaving his
post, conduct unbecoming, neglect of duty and falsifying records. He was
demoted to officer, suspended and subject to a last chance agreement. He then
violated the agreement by engaging in similar misconduct. The Chief considered
terminating H__ , but an agreement was reached with the Union to extend the
last chance agreement and issue a three-day suspension.
Unlike the grievant’s situation, H__ had some 19 years of seniority
compared to six for the grievant. Seniority of this magnitude counts heavily
when weighing mitigating circumstances. Moreover, the reason for the last chance agreement is
clouded in language suggesting that there were “particular circumstances” that
prompted its adoption. This language suggests that absent such circumstances
the discipline would have been greater. There is no evidence as to what these
circumstances may be that afforded H__ this last chance. But it matters little
inasmuch as the parties also agreed that they did not want to be bound in the
future by whatever they did in this case. They inserted language stating that
this case “does not establish a precedent for the resolution of other cases.”
Thus, using this case as evidence for disparate treatment, even when extended
to cover additional conduct, violates the parties’ agreement not to use it in
the future. But even if used, there appears to be a sufficient and reasonable
basis for the different penalties.
Officer K__ was caught by Sergeant Seretti drinking in a nightclub
during working hours after K__ called in sick. He was charged with fraudulent
use of sick leave and suspended for two days. K__ ‘s attempt to use paid sick
leave during a time when he was not sick is somewhat similar to being charged
with falsification. But there are reasonable differences. K__ had no prior
discipline and no warning that he would be terminated for this conduct.
Moreover, K__ may have been sick when he first called. He claimed he hurt his
neck but when it improved later on he decided to go out. Thus, the issue of
intent to defraud seems at best uncertain. There is no evidence that K__ attempted to actually
conceal his actions from anyone. He went to a public place where he knew he
could be seen. The grievant was in a secluded and far-removed corner of the
City in a vacant lot in the middle of the night.
A Sergeant Lopez observed officer S__ at the station when her DAR
reflected she was at Country Glen. S__ then resigned from the Department before
the investigation was completed. Thus, there is no discipline to compare. E__ was charged with
untruthfulness for giving a false statement during an internal investigation
while a probationary officer. Termination was recommended but then her
probation was extended. Chief Werder remembered very little and no
documentation was produced. This instance is too sketchy to provide a
sufficient basis for disparate treatment. The Union’s burden is to have the
facts and documents for those employees it claims are comparators.
All in all the evidence fails to establish that the grievant was not
treated evenhandedly when compared to other employees with similar violations,
or that he was treated disparately when considering the penalty. Noteworthy is
that the grievant received a three day suspension one year earlier for similar
violations; this is the same penalty given to C__ for his first violation of
similar offenses. Significantly, except for H__ , none of the employees who
were disciplined were under a final warning. The H__ situation is the exception
because the parties agreed to make it one. They specifically decided that
whatever was involved in that matter they did not want to cite it as a
precedent to be used in the future. As such, there is insufficient evidence to show that even if the
grievant is found to have violated department rules that his penalty should be
reduced to a suspension.
2. Did the City Have Just Cause
to terminate the Grievant?
The crux of this grievant’s
termination relates to leaving his assigned zone and joining two other officers
for an extended period of time in another zone and whether he was there for a
legitimate work purpose. This conduct resulted in the grievant completing a
record of his time that included what he contended was time spent there and a
description of what he claimed he was doing. It is this conduct that must be
closely scrutinized to determine if the City had just cause for this discharge.
The grievant is charged with
violating rules relating to neglect of duty, unbecoming conduct, falsification
of departmental reports, and meal and rest breaks.10
a. Neglect of duty
The essence of this termination
decision is the charge that the grievant neglected his duty by in effect hiding
out with two other officers in this remote area of the City. The Union
maintains that it is wrong to rely solely on the observation of Sergeant Brown.
But there is little in dispute about what Brown observed and, as seen, there is
evidence from the other two officers that they were not there to patrol or even
to have a meal break. C__ in no uncertain terms stated at the pre-determination
hearing that “we were hanging out . . . it was too long in one area.” He
confirmed this statement at the arbitration when he testified that it was
simply wrong for the three officers to have been there for that period of time.
L__ did not testify, but his statements from the pre-determination hearing are
in evidence. He also knew it was wrong, as seen by his statement that “they
could have been raping and pillaging in my zone and I wouldn’t have known.”
It is undenied that the grievant’s primary assigned duties where
elsewhere than Country Glen. His assigned duty was in zone 3. This did not mean that if his
duties required him to move to another zone he could not do so. But there is
little if any evidence suggesting that he should have abandoned his assigned
duty and congregated with other officers in this remote area. His attempt to
make this period of time into a patrol simply does not wash. C__ best described
their meeting as “hanging out,” which is hardly a patrol and certainly not a
recognized police function. “Hanging out” is plainly not law enforcement by any
stretch of the imagination. C__ ‘s characterization of what they were doing, or
not doing, is exactly what Sergeant Brown observed for some 20 to 30
minutes—three officers resting in their vehicles parked side by side. L__ admitted
he was playing a computer pinball game and was completely unaware of what was
happening around him. C__ had his glasses off and could barely make out whether
the appearance of a car 20 feet away was the Sergeant’s car. Then he could not
tell if it was Brown coming or the grievant going. He was completely confused.
But the grievant was not occupied with games or immersed by confusion. He knew
his Sergeant was there. Yet he chose to simply sit in his vehicle for some 30
minutes and do nothing, even after L__ and C__ left the scene to return to
their patrols. To suggest that this conduct is not neglect is simply
misplaced.
There is more that establishes
the grievant’s neglect. It is the grievant who instigated the congregation at
Country Glen. He placed the calls to C__ and L__ right after the three of them
were ordered to immediately breakup their joint stakeout and return to their
individual zones. C__ and L__ were extremely upset and the grievant appeared
just as angry with Brown by suggesting this getaway in Country Glen. L__ was
prepared to “do nothing” after this rebuff from the Sergeant. C__ and the
grievant obviously felt the same as seen by their retreating to this remote
area and remaining there well beyond any meal break and without any credible
evidence that they ever patrolled the area.
Still, the grievant attempts to
justify being in Country Glen. He states that during the roll call Brown told
officers to patrol this area. It is evident from the detailed supervisory logs,
especially the one for February 10, that had this assignment been mentioned by
the Sergeant at the roll call, it would have been written on the log. It was
not there. Yet there are specific references to other assignments, such as
checking the Griffin Road construction site. Brown’s denial that he added
Country Glen is thus more credible than the grievant’s version.11
The notion that they were there
to patrol is also weakened by the grievant’s statement when he planned this
event. They would go there and “walk around” he told the others. However, none
of the officers walked anywhere once they arrived. It is true that it was cold
that night. But the grievant knew this when he instigated this gathering only
two hours earlier.
Moreover, even assuming the
grievant is right, that the Sergeant mentioned patrolling at Country Glen, it
is most curious that the fourth officer on duty, Bill Brown, did not patrol in
zone 4. Clearly though B. Brown did not come to Country Glen because he was not
invited by the other three officers to do so, and most importantly, there was
no order from the Sergeant to do so. Brown was occupied in his own zone, and
for this extended period appeared to be the only officer in the City pursing
active law enforcement. L__ , as seen, conceded that he had no clue what was
happening in his zone. If that is the case, then the grievant likewise was
neglecting his duty to be patrolling in zone 3.
In other words the need to patrol
Country Glen was contrived to provide them with a place to avoid their duties
and seemingly sulk over being pulled from the stakeout. Sergeant Brown never
saw any patrolling, which is consistent with C__ ‘s admission that they were “hanging
out” and L__ ‘s admonition that they were going to “do nothing.”
It would seem reasonable that a
police officer, upon being ordered by his supervisor to avoid congregating with
two other officers, would understand that he is to remain in his assigned
duties only. Brown’s instruction to the grievant only several hours earlier
should have been sufficient for the grievant to avoid exactly what he then did
with C__ and L__ . This openly defiant act strongly shows that the grievant was
intent on having his own way and ignoring orders. He intended to avoid and thus
neglect his duty to enforce the law and protect the citizens of this City for
this substantial period of time.
The grievant also maintains that he went to Country Glen for his meal
break and it is not improper for officers to congregate for a break. There is
some evidence that the congregating of officers for meals and breaks has
occurred at gas stations and restaurants in this City. But there is no evidence
that it would be proper to gather en masse in remote areas of the City for
periods longer than the 30-minute meal break. Meeting in public areas is one thing—the visibility the
police would have with the public is obvious. Yet, clearly the gathering here
is not the case, especially when three-fourths of the City’s police on duty are
in effect hiding out in a construction site in the far reaches of the
City.
Finally, even if the grievant is correct, that he was at Country Glen
to have his meal, his 30-minute break period was up by the time Brown arrived
shortly after 3:00 a.m. The grievant said he arrived at 2:30, although the
guard places him there much earlier. There is no dispute that the grievant knew when Brown arrived,
and by that time, whether using his version of the time or the guard’s account,
the meal period was finished. Still, he sat there and did nothing. He did not
approach his supervisor. He did not patrol Country Glen by car or foot. He made
no effort to return to his own zone. Then, when L__ and C__ left he remained
yet another ten minutes before finally speaking with Brown. In other words, for
at least a full 30 minutes the grievant sat in his car knowing that his
supervisor was watching him. The grievant was not eating and he was not
patrolling.
As such, the evidence overwhelmingly shows that this grievant clearly
and intentionally neglected his duty on the February 10, 2002 midnight shift
when he first planned to meet with the two other officers in this remote area,
and then did so for a period well in excess of any meal break.
b. Unbecoming conduct
The public also expects a high
degree of respect and confidence in its law enforcement personnel. There is a
great deal of dependence on police officers to provide protection and safety,
especially in these current times. Any conduct that undermines this perception
tends to destroy this important sense of confidence the public places in its
law enforcement personnel. Further, relationships with fellow employees are
also at stake, especially in this profession where loyalty and respect are
needed for self-protection in fighting crime.
There is nothing more basic to the public then knowing and
actually observing its police officers uphold and enforce the law. Knowing that
a community is being patrolled on a regular basis through the night provides a
sense of security and confidence to citizens. The grievant would be hard
pressed to explain how he was protecting citizens in zone 3 for the one hour or
more he spent in this isolated area in the far western end of this City, or why
he chose to remain in his vehicle for about 30 minutes when his Sergeant caught
him, or why he failed to leave with the other officers and then remained to
have it out with his Sergeant for following him. Nor could he explain how he
would be able to assist the one officer who remained in his zone and how he
could help him from this remote area if he needed assistance. This is not
conduct that becomes a police officer.
The Union says that there is no
evidence that anyone was discredited. Moreover, the grievant has many
commendations from supervisors, peers and the community where he is highly
respected. There is no evidence that Officer Brown, who remained in his zone,
was left in any type of danger and even Sergeant Brown ignored his duty by
watching these officers for 20 minutes.
It is true that the officers
could likely have responded to an emergency call fairly quickly, but of course
not as quickly if they had been in their own zones rather than being been
immersed in this secluded area at one end of the City. It is also true that the
Sergeant could have immediately ordered the three to disperse if he believed
that Officer Brown’s safety and that of the citizens was at stake. It is
correct that the grievant has had commendations showing that he is respected.
However, no one would give him commendations for hiding out in this
construction site. Perhaps Brown should have gone in and instructed the three
officers to report back to their zones, as he had done earlier with the
surveillance. But this would not have undone the fact that they were there for
a substantial period without his knowing about it and without any valid
purpose.
Finally, it is also true that no
one came forward to claim they knew what the grievant did and that this was
improper conduct for a police officer. This absence of evidence is of course
understandable, given that the grievant and his cohorts were hidden away in the
middle of the night in this faraway location. Obviously no one else would know
of this hidden meeting. But this is what they intended. Why else go to this
remote area? They could have met at a gas station, a plaza or some other area
with lights and in the open. To suggest that the grievant escape this charge
because he intended to avoid detection is without any merit
c. Falsification of departmental
reports
The Union is correct that the
DARs have a variety of estimated times as well as large gaps of time that are
unaccounted for. Employees have not been warned or disciplined about these
lapses. However, there is little to be gained by attempting to figure out how
long the grievant was at Country Glen. He states in his own DAR that it was one
hour. The security guard says it was longer. There is no time clock, no video
and no other way to verify times to conclude that the DAR time was false.
Nonetheless, even one hour is too long when the purpose for the time had no
validation.
Thus, it is this purpose for the
one hour out of his zone, as he stated on the DAR that is of more concern. He
wrote that he was patrolling and on a “40”or a meal break. Yet, it is curious
that this DAR on February 10 is the only one in a two-month period where the
grievant saw fit to write that he was on a “40.” It suggests that he needed an
excuse for occupying this one-hour, the time that C__ termed as just “hanging
out” and the time spent when L__ was playing a computer pinball game. Each of
them admitted that it was wrong for them to be there and by these admissions
suggested that none of them, including the grievant, were there to patrol.
Brown did not see him patrol for the almost 30 minutes he was there and neither
L__ nor C__ mentioned anything about the grievant patrolling. Thus, the
grievant’s assertion that he actually patrolled for the one hour or ate his
meal for 30 minutes and patrolled for 30 minutes is wrong.
Testimony that the DAR does not
have to be 100% correct refers to the times that for the most part are
estimated. But the purpose for this time must certainly be accurate. There are
any number of valid uses for this information. The evidence suggests that the
grievant knowingly placed this false information in this report when in fact he
was aware that he had not patrolled for this period of time or for even half of
the time he indicated on this DAR. It is falsification and a violation of
departmental rules.
d. Meal and rest break
The evidence is much less clear
about the meal break. There is some concern as to whether Miami Subs is open as
late as the grievant maintains. The grievant produced no receipt and no witness
from the restaurant. However, it is the burden of the City to establish that he
was not on a meal break and to have this evidence. Accepting the grievant’s
version means that for 30 minutes he was on his meal break. The evidence
otherwise does not establish that employees had to inform supervision of their
meal break. A major concern, however, as seen above, is that the grievant
conveniently used the “40” code in this one report, whereas during a two month period
in evidence, none of his reports show that he ever used this code. By so doing,
as also noted earlier, he gives less credence to his version that he went there
to eat.
e. The discharge penalty
The evidence is sufficient for just cause. The grievant clearly
neglected his duty by being in this area for this length of time and by not
engaging in any duty. This conduct tends to undermine the confidence people
have in police and as such it was unbecoming to the grievant’s profession. His attempt
to call his actions patrolling when they were not, and to write it on his
signed daily report, was an intentional act of falsification. These three acts
are especially damaging to morale of a law enforcement agency and certainly to
the public trust placed in its law enforcement personnel.
The grievant’s actions occurred
despite the grievant being ordered to disperse from an unauthorized
surveillance with these same two officers only a short few hours earlier and to
return to his assigned zone. Moreover, his actions occurred despite a warning
in writing only one year earlier that “an additional event or episode of
malingering or misrepresentation in the future shall result in a recommendation
of termination?” An “additional event” did occur.
There is no question that the grievant was malingering in this remote
area with two other officers for a substantial period of time away from his
primary assignment and then misrepresented on his DAR what he was doing there. The warning is
mandatory—termination “shall” be recommended and the Chief did so.
The grievant’s position that he believed he was starting with a clean
slate and that this discipline would not be used against him is rejected. Nowhere in the addendum is such
a statement made. Instead the addendum makes it clear that the penalty was reduced
by two days based on some mitigation facts presented for the first time. The
addendum is just that, it is not a new suspension with new terms. The Chief
made it certain in this notice that he was only changing the term of the
suspension and nothing more. An agreement not to use discipline in the future
is an important exception to the rule of progressive discipline, and thus it is
the type of information that would be placed in writing. Reliance on oral
representations, especially one that is as vague as “clean slate,” for the
proposition that the discipline would not be used is unconvincing. Even the
grievant had to admit that he did not recall the Chief specifically telling him
that this discipline would not be used against him if he had future violations.
Accordingly, the evidence is
sufficient to find just cause for the violations and the penalty of discharge
is appropriate in these circumstances.12
Based on the above and the entire record, the grievance is denied.
* Selected by parties through procedures of the Federal Mediation and Conciliation Service.
1. C__ testified the three
officers were angry with Sergeant Brown for calling them away from this
stakeout. C__ then related that he would only do residential patrol rather than
any active patrol that could require an arrest. At his pre-determination hearing
L__ stated that he, too, was “upset” with the Sergeant and decided he would now
“do nothing.” Brown did not want all three officers in one zone where they were
unneeded.
2. Country Glen is located in the
far western end of the City.
3 This record has all other calls
whited-out.
4 When asked at the hearing why
he chose not to leave with L__ and C__ and then stayed some ten minutes longer,
he replied: “I don’t remember. I don’t believe any specific reason.”
5. The grievant’s other DARs for
January and February do not have any “40”codes. There is one reference to a “40”
in his “Zone book/roll call notes” section on the back of his February 24 DAR.
This number is circled. Inasmuch as there is no time frame for this
designation, and a “38”is also circled in this notes section in one of his
January DARs, it is unclear whether the “40” was meant as a code for a meal
break on February 24.
6. At the arbitration he related
that it was not uncommon for him to be in Country Glen because he knew people
there and would do them a favor and patrol. He did not claim that he was doing
any favors on February 10. His log reports for January and February have only
two other entries for Country Glen.
7. Alan Wood Steel Co., 21 LA 843
(Short, 1954).
8. It is true that a third
statement, this one in writing, was not taken until after the termination
decision. But clearly the City relied on the two oral interviews made prior to
the decision to terminate. It is this information that is cited in the reports.
The written statement after the fact was likely made to memorialize this
non-employee’s statement for purposes of litigation.
9. The Union argues that the
pre-determination hearing itself was faulty; all the City wanted was for the
grievant to confess his wrongs. This is what enabled C__ to get a suspension.
However, this was C__ ‘s first misconduct offense, unlike L__ and the grievant
who had previous misconduct discipline and warnings. Although C__ was
forthright and took responsibility, there is nothing in the Chief’s report to
suggest that this accounted for the suspension rather than termination. In fact
the Chief observed that even though C__ accepted responsibility and attempted
to be truthful, his testimony “was compromised by your sense of loyalty to the
other two officers.” He found C__ ‘s statement admirable, “yet [it] promotes
the inaccuracy” inasmuch as each officer had a responsibility “to prod the
others into fulfilling your duties. . . .” L__ was also forthright at that
hearing when he admitted that he used “bad judgment” and did not dispute the
times Brown said he was in and out his zone. Still, the Chief concluded that “the
facts of your sustained conduct . . . supports a recommendation of termination.”
10. The Union argues that the
theory of subsumption is applicable. This is a theory applied in some Florida
Public Employee Relations Commission (“PERC”) cases and other Florida
administrative decisions. Arbitrators generally have not adopted this theory
which rejects charges that can be subsumed or considered within a larger
charge. The Union appears to assert that none of the department rules should be
considered as violations; the unbecoming rule and violation of rules and
regulations rule should be subsumed within each other and the other charges are
“inappropriate.” This theory is rejected here. The Union also contends that
there is a condonation defense; the City condoned officers eating outside the
City, not checking with supervisors before taking meal breaks, and conceding
that time frames need not be 100% in the DARs. These points will be considered
when the individual rules are discussed.
11. It is also noted that the
grievant’s attempt to make his presence there acceptable because he knew
residents and patrolled for them, has no basis in fact and only serves to
further weaken his credibility. He had to admit that no resident of Country
Glen asked him to patrol that night and the records show that he has only been
in this area twice during January and February.
12. The grievant’s fine record as
well as letters and notes of commendation from the public and his superiors has
been closely examined and considered for mitigation purposes. Other than this
final incident Sergeant Brown gave good ratings to the grievant. There is
evidence that only two months earlier the grievant received counseling from the
Chief about his continual tardiness for roll call (six occasions). This is not
discipline but is relevant when considering mitigation. The Chief expressed his
concern to the grievant that he was not placing the proper importance on his
job as a police officer for this City and showing disrespect for Sergeant
Brown. This disrespect for Brown is also evidenced in this February 10
incident. In balance, the weight of the commendations and the grievant’s past
record do not overcome the seriousness of his improper actions on February 10,
especially in the face of the prior discipline for similar conduct and the
earlier order on this same date, as discussed above.