|
County
of Shasta Sheriff’s Department
and
Shasta
County Deputy Sheriff’s Association
120
LA (BNA) 377
CSMCS Case No.
ARB-03-2020
C. Allen Pool, Arbitrator
Did the County have just cause to terminate G__? If not, what shall be
the remedy?
Article XV. Disciplinary
Action
A. Basis for Disciplinary
Action. The tenure and status of every unit employee is conditioned on
reasonable standards of personal conduct and job performance. Failure to meet
such standards shall be grounds for appropriate disciplinary action. Grounds
for discipline of any employee in the classified service include but are not
limited to the following:
5. Violation of any lawful
or reasonable regulation or order made or given by a superior officer.
13. Conduct unbecoming a
County employee which indicates the employee is unfit to perform the functions
while on duty, while attending any event related to employment, while using a
County vehicle, while on County owned or leased property, or while in uniform.
B. Procedures for
Disciplinary Action
1. Types of Discipline.
Three types of discipline are recognized for purposes of applying one of the
procedures under this article, they are:
a. Written Reprimands. A reprimand, the details of which are committed to writing and
placed in the employee’s personnel file.
b. Intermediate
Disciplinary Action. Suspensions without pay, demotion or
reduction in pay.
c. Severe Disciplinary
Action. Discharge.
2. (5) (e) The Arbitrator shall
determine whether to sustain, reject, or modify the action discharging the
employee. The written award of the Arbitrator on the merits of any appeal
adjudicated within the Arbitrator’s jurisdiction and authority shall be final
and binding on the employee, the Association, and the County.
§3/020 Misconduct. A law
enforcement officer is the most conspicuous representative of government, and
to the majority of the people he/she is a symbol of stability and authority
upon whom citizens can relay. An officer’s conduct is
closely scrutinized, and when he/her actions are found to be excessive,
unwarranted, or unjustified, he/she is criticized far more severely than
comparable conduct of persons in other walks of life. Since the conduct of an
officer, on or off duty, may reflect directly upon the Department, an officer
must at all times conduct him/herself in a manner which does not bring
discredit to him/herself, the Department or the County.
§3/090 Conduct
reflecting adversely on the department or employee. Members shall not conduct
themselves, whether on or off-duty, in a manner that might be construed by an
observer as indecent, lewd, or disorderly, or which is of such a nature that it
causes discredit to the Department or to employees. They shall not be guilty of
misconduct, neglect of duty, or acts tending to discredit the Department or
themselves even though such conduct is not specifically set forth in this
Manual. They shall be guilty of misconduct, neglect of duty, or acts tending to
discredit the department or themselves even though such conduct is not
specifically set forth in this manual. (Rev. 10/01).
§3/090.10 Conduct while in
uniform. While in uniform members shall use sound discretion in their conduct
and activity. Any such conduct or activity likely to debase law enforcement,
detract from Department image, or bring ridicule to the Department is
unacceptable.
§3/190 Public demeanor.
Employees shall at all times be attentive to their duties and by their
alertness and observation demonstrate their interest
in their work. They shall act with dignity, and maintain a professional
bearing. They shall not, while on duty, read newspapers, periodicals, or
similar material in public view, except in the line of duty. They shall not
exhibit a lazy disposition, or lounge about, or sleep while on duty, or place
their feet on desks or other furniture in any, sheriff’s department
office.
§3/200 Personal business.
Officers shall not shop, barter, or trade while on duty, nor devote any of
their on-duty time to any activity other than that which relates directly to
their work. Officers shall not enter places of amusement while on duty except
for law enforcement purposes.
The events leading to this
arbitration began on
Six months later on September
1st, the Sheriff’s office learned of the incident. An Internal Affairs
Investigation was ordered and when completed the report was given to Sheriff
Jim Pope. On
During this time, the Grievant’s peace officer powers were suspended.
Two weeks later, because the
investigation had not yet been completed and because of language in the MOU,
the Grievant was given an interim assignment with the Department’s Marijuana
Eradication Team (
The termination notice came on
Position of the County
The County had cause to
terminate the Grievant’s employment with the County.
The County met the burden of showing that termination, under the circumstances,
was the appropriate penalty. The Grievant admitted to engaging in an incident
that was in sexual nature with the female participant in the Ride-Along
Program.
Peace officers are held to
higher standard than other employees. His conduct was unbecoming of a peace
officer and a breach of the trust placed in him as a peace officer. His conduct
brought discredit to the County and to the Department and renders him unfit for
duty. At the time of the incident, he was in uniform, on duty, and in a marked
patrol vehicle. Because of his misconduct, he will no longer be able to work
effectively with other law enforcement agencies nor with officers in the
Department.
He had been given a written reprimand for
misconduct three years prior that was similar in nature. In the reprimand, he
was put on notice that that behavior was unacceptable and would not be
tolerated. Termination was the appropriate penalty. The grievance should be
denied in its entirety.
The County did not have cause to
terminate the Grievant’s employment with the County.
The facts in the matter are not in dispute. The Grievant admitted to engaging
in an act that was sexual in nature with the female participant in the
Ride-Along Program. However, termination is a career ending penalty and was not
the appropriate penalty in this instance. Mitigating circumstances dictated a
lesser penalty.
For the almost 10 years that the
Grievant had served as a deputy with the Sheriff’s Department, he had an
exemplary performance record that contained numerous citations acknowledging
and recognizing his contributions to the County, the Sheriff’s Department, and
the community. During that span of time, he received only one written reprimand
and that was almost three years prior. The Grievant is human, he erred and he
has learned from the incident and can, in the future, again be an asset to the County,
the Department, and the community. The Grievance should be sustained.
The Grievant voluntarily and freely admitted to the misconduct. The
issue in this matter was therefore narrowed to the question of whether
termination was the appropriate penalty.
Before proceeding to the merits of the case, a few comments about the just
cause standard may be helpful. Just cause is essentially a standard of
reasonableness and fairness. Among other things, it requires that the penalty
imposed fit the seriousness of the offense. It requires that consideration be
given to the total circumstances of the case. The standard holds that if the
penalty is beyond the range of reasonableness and unduly severe, the penalty
should be modified.
The discharge penalty is
normally reserved for the very serious, the most egregious types of misconduct
and for repeated misconduct. Discharge is the most extreme penalty the employer
can impose since it irrevocably terminates an employee’s employment, cuts off
his income, deprives him of all the seniority and other benefits he has
accumulated in the course of his/her employment and often jeopardizes his
chances of finding another job.
Incorporated in the just cause standard is the concept of progressive
or corrective discipline. With corrective
discipline, the object of the penalty is to make the employees recognize their
responsibilities so that they may become better employees in the future.
Corrective discipline also assumes that the employer as well as the employee
gains more by continuing to retain the offender in employment at least for a
period of future testing, than cutting the employee from the employment rolls
at the earliest possible moment. This is especially true where the employee has
a work record of long and quality service the consideration of which plays a
part in determining the appropriate penalty. Other mitigating factors
frequently considered when determining the appropriateness of a penalty include
the employee’s attitude, an admission of wrongdoing, an expression of remorse,
a finding that it is unlikely the employee will repeat the misconduct, and an
absence of serious harm from the employee’s conduct.
The negotiated
language of Article XV. A and B of the MOU clearly reflects the mutual intent of the
parties. The language expresses the basis for disciplinary action. The language
also recognizes three types of discipline and their purpose: Written
Reprimands, Intermediate Disciplinary Action, and Severe Disciplinary Action.
The mutual intent of the negotiated language is clear. Discipline, for all but
the most serious offenses, will be imposed in gradually increasing levels and
that the object of discipline is to correct rather than to punish. The language
makes it clear that for most offenses employees are entitled to one or more
warnings before some type of discipline and some type of discipline before
discharge.
The County’s contention was that the Grievant’s
misconduct was similar to the misconduct for which he received a written reprimand
three years prior. He was engaging in “personal business” while on duty. The County’s contention did not stand the test of
reasonableness and nor was it supported by the evidence record. First, while he
did conduct personal business while on duty there was no evidence the
“business” was sexual in nature. Moreover, the Grievant’s
Performance Appraisal Report for the period following receipt of the reprimand
(July 2000 to July 2001) was one where he was given an overall performance
rating of “Exceeds Standards”.
Second, the termination notice
noted that he had been forewarned in the prior reprimand that doing personal
business while on duty was unacceptable and would not be tolerated in the future.
The reprimand, however, failed to put him on notice as to the probable
consequences for a repeat offense. In addition, even if the reprimand had put him on notice as to the
probable consequences, a second offense of the same or similar conduct hardly
comes close to requiring termination as the penalty in this instance.
Added to this was testimony by the Sheriff that even without the prior
reprimand, termination was the appropriate penalty in this instance. Even if
the Sheriff had given weight to the reprimand at the time of his decision to
terminate, according to the MOU some type of Intermediate Disciplinary Action
would have been a more appropriate penalty.
The County argued very
forcefully that the Grievant’s conduct was such that
he could no longer function effectively as a law enforcement officer. In
support of this argument, Senior Deputy District Attorney, Daniel Flynn,
testified that because of the Grievant’s poor
judgment or lack of judgment he could no longer, in the future, rely on the truthfulness
of investigative reports filed by the Grievant with his office nor could he
rely on the Grievant to be a credible witness if subpoenaed as a witness in a
criminal, felony case. Mr. Flynn also testified that the material related to
the incident was, in his opinion and the opinion of the District Attorney,
discoverable material and would have to be made available to the defense in
future cases involving the Grievant.
Mr. Flynn’s testimony was
informative but not material to the issue of whether termination was the
appropriate penalty. He was not involved in concluding that termination was the
appropriate penalty. Mr. Flynn’s involvement in the matter came when a separate
criminal investigation report was brought to him by Investigator Breshears. He testified that after reviewing Mr. Breshears’ report and after questioning the woman involved
he concluded that, based on the facts, criminal charges were not warranted. It
was clear from his testimony that after that decision, the DA’s office was not
involved in the matter.
The determination to terminate
was made solely by the Sheriff after he reviewed the IA report. (It is my
understanding that IA reports generated by the Sheriff’s Department, as a
matter of policy, are confidential “in house”reports.)
There was nothing in the evidence record showing that the Sheriff consulted
with anyone in the DA’s office before making that determination. Moreover, Mr.
Flynn testified that he had not and still has not reviewed the IA report. When
asked if he was aware that the Notice to Terminate the Grievant contained no
allegations or charges of dishonesty or untruthfulness, Mr. Flynn testified
that he was not aware of that information. Mr. Flynn was also asked if he was
aware that the Grievant, following the incident, had continued to be subpoenaed
by the DA’s office to appear as a witness in court. He testified that he was
not aware of that fact. The point here is that what Mr. Flynn testified to was
after-the-fact information. And, in determining that termination was the
appropriate penalty, the Sheriff did not consult with the DA’s office before
arriving at his decision.
The County also contended that
the nature of the misconduct that led to his termination will make it
impossible for him to work effectively with other law enforcement agencies and
with other members of the Sheriff’s department. The Sheriff testified that the Grievant’s “indiscretion” would impact other law
enforcement agencies. When asked what this assumption was based on, the Sheriff
testified that it was based on “experience and rumors and talk, and there is,
were a lot comments made”. The Sheriff also testified that he did not talk
about the incident to law enforcement officers from other agencies. The
evidence record did not support this contention. An employee’s employment
should not be terminated on the basis of rumors, talk, and a lot of
comments.
The testimony of Special Agent
David Burns of the Bureau of Land Management with whom the Grievant had worked
on several marijuana eradication operations was that he could and would work
with the Grievant if returned to service. Agent Burns acknowledged that he was
aware of the incident that led to the termination decision but that his opinion
of the Grievant had not changed because of the incident. He considered the
Grievant to be a recognized leader by those who had worked with him, a thorough
investigator and planner, and a person who always treated people with respect
and humanity. On direct examination, Agent Burns testified that he would have
no problem working with the Grievant whatsoever and that his opinion of him had
not changed at all. Agent Burns also testified that what the Grievant did was
wrong and deserving of discipline, but not termination.
Added to the above was the testimony
of Sgt. Tim McDonald of the Sheriff’s Department. Sgt. McDonald had been the Grievant’s supervisor in the several months prior to the IA
investigation, a period of time when the Grievant was assigned to Sgt. McDonald
Marijuana Eradication Team (
On cross-examination, Sgt.
McDonald testified that, in his opinion, the incident involving the female
participant in the Ride-Along Program was a moral mistake; but, we all make
mistakes and that he, the Grievant, can still be a role model regardless of the
incident. On Re-Direct, Sgt. McDonald testified that the Grievant is a good
man, a good officer, that he has the capacity to learn from his mistakes, and
would be a valuable officer if returned to the department. The County’s
contention that the Grievant’s behavior in the
incident made it impossible to work effectively with other officers in the
department and with other law enforcement agencies was not supported by the
evidence record.
Another very significant mitigating factor was the Grievant’s
work record. In the almost ten years he had been with the Sheriff’s Department
his evaluations showed him to be an outstanding officer. In his first six
yearly evaluations, his overall ratings were “meets expected standards”. In the
last four evaluations, his overall ratings were “Exceeds Standards”. In
addition, he had received, at the recommendation of the Sheriff, three “officer
of the year” awards. His personnel file also contained numerous commendations
from supervisors in the department, from people and organizations in the
community, and from visitors to the County that he had assisted. It is the
conclusion of the Arbitrator that the Grievant’s long
period of service and the quality of his service were not accorded the due
consideration they deserved in arriving at the decision to terminate his
employment.
In addition to the above was the
Grievant’s attitude. He freely admitted to the
misconduct, he made no attempt to lie or to cover-up his misconduct. In fact,
he showed sincere embarrassment and remorse. He acknowledged that he had made a
mistake in judgment and would do whatever it takes and would take any position
just for the opportunity “to redeem myself”.
For the reasons discussed in the
foregoing, the decision of the Arbitrator is that the County did not have cause
to terminate the Grievant. However, the County did have cause to discipline the
Grievant with a penalty less than termination. The grievance is sustained in
part.
The grievance is sustained in part. The County did not have cause to
terminate G__. However, the County did have cause to discipline G__ with a
penalty less than termination.
The County is directed to immediately
reinstate G__ to his position as a Shasta County Deputy Sheriff with all the
rights and benefits that go with such employment and to make him whole for all
lost income and benefits less other income earned.
With respect to the question of an appropriate penalty less than
termination, the matter, as requested by the parties, is remanded to the
parties to come to a mutual resolution as to what shall be an appropriate
penalty.
The Arbitrator retains
jurisdiction in this matter with respect to any dispute that may arise in
implementing the remedy.