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In
re
City
of Bartow, Florida
and
West
Central Florida Police Benevolent Association
121
LA (BNA) 798
FMCS Case
No. 05/52254
June
29, 2005
Paul Greenberg, Arbitrator *
The Grievant has been on the Bartow police force more than 14 years. He was promoted
from Police Office to Sergeant around 1999. In late 2003 the Grievant was
assigned to supervise the Crime Suppression Team, a special small unit of three
Bartow police officers (plus the Grievant) created to
target property crimes, burglaries and similar crimes, which had spiked in the
community. Because of the small size of the unit, the Grievant functioned as a
hands-on supervisor, “working the road” with his police officers and handling
backup.
The Grievant was on patrol at 3:00 AM on July 31, 2004, when he
attempted to make a traffic stop of a vehicle he found suspicious. A series of
events followed which ultimately led to his demotion from Sergeant to Police
Officer rank.
The Grievant’s traffic stop and
the competing domestic disturbance call. On the morning of July 31, the
Grievant observed a small pickup truck driving through a known drug market
area. The Grievant felt the truck really did not seem to be going anywhere, and
began to follow it. He noticed the vehicle did not have brake lights, and he
decided to stop the vehicle. He contacted dispatch, notifying them of his
activity and asking for a check to see whether there were outstanding “wants or
warrants” on the vehicle or its registered owner. Two other officers listening
to the radio communication advised dispatch they would respond as backup to the
Grievant. Although one of the two backups subsequently was dispatched to a
different call, a third officer indicated he was near the Grievant’s location
and also would provide backup.
Generally, the Grievant had
advised the dispatchers that members of the Crime Suppression Team would backup
each other; based on this instruction, the dispatchers ordinarily did not
expect to assign officers to backup members of the Team unless they perceived a
growing problem, with additional backup from non-Team officers needed. Two
dispatchers were working in the dispatch room on the morning of July 31: N__
and Dawn DeSalvo. The Grievant’s primary
communication was with Dispatcher N__.
At about the same time the
Grievant was attempting his traffic stop, Dispatcher DeSalvo
received a phone call from a juvenile reporting a domestic disturbance between
her mother and stepfather. Based on the tenor of the juvenile’s voice, and the
fact that both disputing adults were still present in the house, DeSalvo advised N__ the situation might be urgent and
escalating. N__ proceeded to dispatch officers to the scene of the domestic
disturbance.
Dispatcher N__ continued to
monitor the traffic stop. She quickly provided the Grievant with information on
the suspect vehicle, including the name of the registered owner. However, no
additional background criminal information was immediately provided on the
registered owner while the attempted traffic stop was in progress.
The suspect vehicle refused to stop.
Department policy generally prohibits chases except to apprehend persons wanted
in violent felony cases. Lacking information about the vehicle owner that might
have justified a chase, the Grievant abandoned the traffic stop as the vehicle
approached the city limit and asked dispatch to notify the police department in
the neighboring community that the vehicle had entered their jurisdiction. In
the Grievant’s view, if he had been provided timely information that would have
supported a pursuit (e.g., that the registered owner of the vehicle was subject
to an outstanding warrant), he might have responded differently to the “failure
to stop.” Several minutes later, the domestic disturbance call also was cleared
at 3:42 AM.
At no time did the Grievant use any of the standard radio cues to
signal to the dispatchers and other police officers that he believed himself to
be in imminent danger or in need of priority attention.
The Grievant’s
confrontation with Dispatcher N__ and subsequent complaint to the dispatch
supervisor. The dispatchers have a
supervisory “chain of command.” However, when their supervisors are not present
during “after hours” periods like late at night, the dispatchers are
responsible to the patrol division, which would be the corporals or sergeants
on duty. Although the Grievant was not the dispatchers’ supervisor, he was the
senior sergeant on duty the morning of July 31. In addition, the Grievant
occasionally has worked dispatch himself.
Police activity in Bartow is monitored using two tools. One is the Computer
Assisted Dispatch (CAD) system, which requires dispatchers to enter information
into a computerized log while an event is taking place (i.e., the initial
incident report, who is serving as backup, further data documenting the event
as it develops, outcome/closing, etc.). This is a manual data-entry system; if
the dispatcher does not take time to record developments, the CAD record may be
incomplete. In addition to the manual CAD entries, all dispatch room radio
traffic is recorded on audiotape. CAD printouts are readily available to police
officers, but audiotapes are not generally accessible.
After the failed traffic stop, the Grievant returned to the dispatch
room at police headquarters. He confronted Dispatcher N__, criticizing her for
failing to dispatch a backup to him. N__ assured the Grievant she knew he had
backup throughout the traffic stop incident.
When the Grievant pressed her for the names of his backup officers, she was
unsure specifically who had responded to the Grievant’s call, and acknowledged
she had not entered the officers’ names into the CAD system. Witness accounts
differ, but it appears the conversation lasted between 15 and 30 minutes. The
Grievant states he did not yell at N__, but N__ states the Grievant was upset
and raised his voice, reprimanding her and belittling her job performance. DeSalvo was present throughout the exchange and confirms N__’s account.
According to the Grievant, he
was concerned the dispatchers had not sent backup to a situation in which he
(the Grievant) could have been in danger-- i.e., the refusal of a suspicious
vehicle to stop at the direction of a police officer. N__ responded she was
certain the Grievant had backup throughout the incident, and also felt the
domestic disturbance at 3:00 AM also held the potential to result in serious
harm to the involved citizens. During this exchange, the Grievant stated he “didn’t
give a damn” about the citizens of Bartow, and that his safety as a police officer came first. This
statement that he “didn’t give a damn” about the citizens was made by the
Grievant at least twice, sometimes embellished with profanity.
Even after the confrontation
with N__, the Grievant remained focused on the incident. At
Follow-up to
the July 31 incident and dispatch room confrontation. On August 2, the Grievant approached his supervisor,
Captain Robert Green, and shared his concerns about the July 31 traffic stop.
According to Capt. Green, the Grievant complained the dispatch office (1) had
not assigned him backup on the evening of July 31, (2) failed to respond to his
request for background checks on the suspect vehicle and vehicle owner, and (3)
failed to stay in contact with him to make sure he was OK. The Grievant provided
Capt. Green with copies of the CAD printouts for the traffic stop and domestic
disturbance events; the printout related to the traffic stop does not include
any entries indicating backup had been provided. In essence, Capt. Green
understood the Grievant to be complaining the dispatchers had been inattentive
to their work and to his safety. Capt. Green states he was concerned about the
situation as described by the Grievant. If the events had occurred as the
Grievant described, Capt. Green felt the Grievant’s safety concerns were valid.
He promised to investigate the matter. According to Capt. Green, the Grievant
mentioned he had spoken with Johnson about the situation, but did not disclose
to Capt. Green the July 31 confrontation with N__ in the dispatch room.
The next day, Capt. Green and
Johnson reviewed the audiotape of the on-air voice traffic for the morning of
July 31. Although the transcript of the tape confirms that dispatch did not
assign backup to assist the Grievant with the vehicle stop, it also makes clear
the Grievant had at least two officers serving as backup throughout the
attempted traffic stop, and who were participating in the radio communication.
The tape shows dispatcher N__ promptly provided the Grievant with background
information of the suspect vehicle, but did not produce criminal background
information on the registered owner. In addition, N__ was in voice
communication with the Grievant throughout the event. In Captain Green’s view
(as well as the view of Communications Supervisor Johnson), the Grievant never
was in imminent danger and N__’s performance of her
dispatch duties was fully satisfactory: dispatch was monitoring the Grievant’s
status throughout the event, knew he had backup, and provided timely data
support.
Two days later (8/4/04), the
Grievant provided a memo again recounting his concern with the way the events
of July 31 had been handled by dispatch, but with a change in emphasis. In the
Grievant’s view, the July 31 incident suggested a need to develop policies to
guide the dispatchers. In his memo, the Grievant mentioned his late-night
conversation with N__, and expressed his unhappiness with N__’s
view that the Grievant had not been in immediate danger on July 31 and that the
dispatchers had discretion to decide whether to dispatch officers to the
domestic disturbance situation even while an officer (e.g., the Grievant) was
dealing with a “refusal to stop” traffic situation. The Grievant contended the
domestic disturbance was not an emergency call, and questioned N__’s judgment in concluding he (the Grievant) was not in
danger in the traffic stop. He suggested it was necessary to develop a
standardized procedure to resolve this type of conflict so that dispatchers
would know the Department’s policy and officers would know what to expect.
Capt. Green filed a complaint
against the Grievant with Chief Erik Sandvik on
August 25, 2004, recommending an Internal Affairs investigation. In his words, “After
reviewing all documentation available and interviewing the witnesses I find
dispatchers handled the situation in the proper manner. [The Grievant] was
unprofessional to say the least, used very poor judgment, was untruthful about
how the incident took place and in doing so violated several of the Department’s
policies.”
An Internal Affairs
Investigation was conducted, and the Department concluded the Grievant violated
each of five elements of the Code of Conduct:
SOP-201, II(C): Members [of
the Department] shall conduct themselves with the highest personal integrity. It
will be a basic tenet that all citizens are guaranteed equal protection under
the law. Members will have an impartial attitude toward all persons who come to
the attention of the Department. They will be truthful whether under oath or
not. They will, at all times, remain loyal to the City, the Department, and to
their fellow officers. They shall conduct their private and professional lives
so as not to commit any act tending to bring reproach or discredit upon the
Department. Members shall direct and coordinate their efforts in such a manner
as will tend to establish and maintain the highest standards of efficiency.
SOP-201, IV(E)(10):
Members will not use discourteous, abusive, profane or insulting language in
any circumstances in the performance of their duties or when representing the
Department.
SOP-201, IV(S)(9): No member or employee shall knowingly make any false
official report, written or oral, or give false or fictitious information
during department investigations or inquiries.
SOP-201, IV(X)(1): Members
shall not lie, give misleading information, have “selective” memory, or falsify
written or verbal communications in official reports or in their actions with
another person or organization when it is reasonable to expect that such
information may be relied upon because of the member’s position or affiliation
with this organization.
SOP-201, IV(X)(2): Examples of violations
a. Giving untruthful or
misleading statements or partial truths during a legal proceeding, public
service organization investigation, or administrative proceeding. * * *
f. Falsifying any report or
testimony, in part or whole, or failing to provide a complete and accurate
report, testimony or account when it is evident to a reasonable and prudent
person that a complete report would lead to a different conclusion.
The Department notified the Grievant it was considering demoting him to
the rank of Police Officer as a sanction. This would be a “two grade” demotion
to the basic Police Officer rank, reducing his status even below the
intermediate Corporal level.
A pre-disciplinary hearing was held by Chief Sandvik,
during which the Grievant acknowledged he had made serious errors in judgment.
The Grievant accepted the proposition that some discipline would be appropriate,
but argued demotion was too severe a sanction. Nonetheless, Chief Sandvik concluded the Grievant’s conduct was unacceptable
and he had lost confidence in the Grievant’s ability to serve as a shift
supervisor. The Chief ordered the Grievant
demoted. The Grievant grieved the Chief’s decision, and the matter was appealed
to the Barrow City Manager, who sustained the demotion. This arbitration
followed.
Issue Presented
Did the Department violate the
collective bargaining agreement when it demoted the Grievant from Sergeant to
Police Officer? If so, what shall be the remedy?
Relevant Provisions of the
Labor Agreement
Sec. 3.1: Except as expressly
limited by any provision of this Agreement, the City reserves and retains exclusively
all of its normal and inherent rights with respect to the management of its
operations, including, but not limited to, its rights ... to transfer, promote
or demote employees ... [and] to suspend, discharge or otherwise discipline
employees for just cause...
Sec. 4.3: ... The decision of
the arbitrator shall be final and binding on both parties. The arbitrator shall
have no power to amend, add to or subtract from the terms of this Agreement.
Sec. 9.4: ... [N]o employee
shall be suspended, discharged or disciplined without just cause.
Positions of the Parties
A. The Department’s position.
The Department’s decision to demote the Grievant is justified under “just
cause.” The Grievant has admitted using poor judgment in his dealings with the
dispatchers, and using profanity. He has
admitted making disparaging comments about the citizens. Any of these incidents
standing alone would be sufficient to warrant demotion.
In addition, the Grievant was dishonest or misleading in his report to
Capt. Green on August 2. He told Capt. Green
the dispatchers had not assigned backup, when the Grievant knew he had backup.
Moreover, the Grievant previously had instructed the dispatchers that members
of the Crime Suppression Team normally would back up each other, and the
dispatchers therefore did not normally need to assign backups from other
members of the police force. He told Capt. Green that the dispatchers had not
provided criminal background information as requested, when it is clear the
dispatchers promptly provided information on the suspect vehicle. The Grievant
failed entirely to mention his early morning visit to the dispatch office, or
his action berating the dispatchers. He was never in any danger, but asserted
to Capt. Green that the dispatcher’s actions had raised safety concerns. Taken
together, this is conduct by a law enforcement officer that generally is
unacceptable to the Department, and particularly
unacceptable coming from a Sergeant. The Department therefore had just cause to
demote the Grievant to the rank of Police Officer.
B. The Grievant’s position
The Grievant acknowledges he used very poor judgment in several
respects. He admits he handled the interaction with the dispatchers on July 31
poorly, especially in light of the information included in the transcript of
the radio traffic that morning. He is willing to apologize for the way he
communicated with the dispatchers. He also admits he erred in saying he did not
care about the citizens, and using profanity, but notes he was truthful in
admitting this error when interviewed by Internal Affairs. The Grievant states he does not really feel what he said
when he dismissed the importance of the citizens’ safety, but he was angry at
the time, and this was not a statement made to the public. The Grievant also
acknowledges that a domestic disturbance, even if only verbal, has the
potential to escalate into a dangerous situation.
Although the Grievant now
acknowledges receiving background information from the dispatchers on the
suspect vehicle, he contends the more important information for his work on the
Crime Suppression Team was to obtain a criminal background check on the vehicle’s
owner. The record shows the information on the registered owner was not
provided while the event transpired. In the Grievant’s view, his complaint that
he did not receive background information from the dispatchers was not false or
misleading.
The Grievant denies his visit to
the dispatch office disrupted Department operations. Although he does not defend
his use of profanity with the dispatchers, he notes N__ never broke off the
conversation with him and never filed a complaint.
In his defense, the Grievant
denies having lied to Capt. Green during the conversation that occurred August
2. With regard to his safety concerns, the Grievant states he knew backup was
on the way, but he did not actually see any backup near him at the time he was
trying to stop the suspect vehicle. In his view, a vehicle refusing to stop has
the potential to create a safety problem for the officer involved. In addition,
the Grievant notes that when he spoke with Capt. Green on August 2, he provided
the CAD printouts for both the traffic stop (showing no backup dispatched) and
the domestic disturbance event, which included full dispatch records.
The Grievant admits there is
just cause to impose some discipline, but argues the facts do not support the
severe penalty of demotion to the Police Officer rank.
Discussion
As noted above, the Grievant admits
some portions of the charge proffered against him, and acknowledges his actions
on July 31 demonstrated poor judgment. The core of his challenge is that the
Department’s action-demotion to Police Officer-is excessive, and some lesser
discipline should be imposed by the Arbitrator. Arguably, the Grievant admits
just cause exists for some kind of sanction. An initial question that must be
considered, then, is whether this Arbitrator has authority even to consider
modifying the Department’s action as Grievant urges, or whether my function is
limited to determining whether just cause for the demotion exists.
The Department cites two cases
in which courts repudiated arbitration awards because the arbitrator held some
discipline was appropriate, but concluded the sanction imposed by the employer
was too great and imposed a lesser penalty.
In Butterkrust
Bakeries v. Bakery, Confectionery & Tobacco Workers Int’l Union, 726 F.2d
698 (11th Cir. 1984), the court of appeals reviewed an arbitration award in a discharge
case. The parties had stipulated the question submitted to the arbitrator was
whether there was “just cause” for the discharge. The arbitrator’s decision was
ambiguous; although the arbitrator concluded the employee’s offense merited
discharge, he then found that if the employee completed a Dale Carnegie course,
this would mitigate the “just cause” finding. He ordered the employer to
reinstate the worker upon completion of such a course. The court repudiated the
arbitrator’s award. Relying on the framing of the issue as stipulated by the
parties, the court concluded the arbitrator’s work ended once he found just
cause for discharge, and the arbitrator exceeded the scope of his authority
when he concluded a lesser or alternative sanction was more appropriate.
In County of Centre
v. Musser, 548 A.2d 1194 (Pa. 1988), the Pennsylvania Supreme Court considered
an award in which an arbitrator found a county prison had cause for
disciplining prison guards, but rejected the employer’s decision to discharge
the employees and instead imposed a four-week suspension. The labor agreement
provided that “should a grievance over discharge or discipline go to
arbitration for determination, the sole question to be decided by the
arbitrator shall be a question of fact as to whether or not such employee was
discharged for just cause.” Citing United Steelworkers of America v. Enterprise
Wheel and Car Corp., 363
Where a labor agreement clearly limits an arbitrator’s authority to
modify an employer’s action, the
In this case, the parties did
not jointly submit a stipulated statement of the issue presented. The
Arbitrator proposed the issue be framed, “Did the Department violate the
collective bargaining agreement when it demoted the Grievant from the position
of Sergeant to Police Officer? If so, what shall be the remedy?”
The parties agreed to this
formulation, with the Department noting its view that its action (demotion) was
based on just cause following a full investigation. Because the issue before me
is not framed as narrowly as the stipulated issue before the arbitrator in the Butterkrust Bakeries case, supra, the scope of my review
has not been expressly limited by the parties themselves. And unlike the
situation confronting the court in the County of Centre
case, the collective bargaining agreement governing this dispute does not
include any language limiting the Arbitrator solely to determining whether
there was just cause for the specific discipline imposed by the employer.
Because there is no express limitation on my authority in this regard, either
by agreement of the parties when framing the issue to be decided or through the
labor agreement itself, it is my interpretation that the collective bargaining
agreement authorizes me to consider a different penalty if I conclude some
action is warranted, but that demotion is inappropriate.
In the labor arbitration field,
a distinction is made between disciplinary demotions and nondisciplinary
demotions. Disciplinary demotions are imposed upon otherwise-qualified
employees as a penalty for specific work infractions. On the other hand,
nondisciplinary demotions occur when an employer concludes an employee is no
longer competent to perform the job. See generally Elkouri and Elkouri, How
Arbitration Works, 800-05 (6th Ed., BNA Books 2003). Of course, while labor
arbitrators distinguish between disciplinary vs. nondisciplinary objectives,
employers and unions often do not, so it sometimes is unclear which goal is
operative in a particular employer’s decision to demote an employee to a lower
job classification.
Management use of demotion as a
disciplinary tool has proven particularly troublesome for arbitrators. As a
group, labor arbitrators (like most employers and unions) are invested in the
notion of progressive discipline, which is premised upon the assumption that
workers are predisposed to want to perform their jobs better (or at least keep
them) and most likely will respond to discipline by altering their behavior
and/or improving their work. Discipline, then, normally is to be imposed
gradually and proportionate to the offense, all in an effort to correct
performance without imposing a disproportionate harm on the employee and the
employment relationship.
If the goal of progressive discipline is to heal the employment
relationship with minimum trauma to the patient, then demoting an employee as a
disciplinary measure is like performing surgery with an axe: the operation may
be a success, but the scars are very deep. Demotions may result in permanent
cuts in pay and retirement benefits for the affected worker,
and in a unionized context may run afoul of seniority principles. From a human
resources standpoint, reducing an otherwise-competent employee purely as a form
of discipline may be counterproductive to the goal of improving the employee’s
performance, and may have unpredicted effects on the morale of other workers.
Because demotion is disfavored
as a disciplinary tool, labor arbitrators frequently have rejected demotion as
too severe a penalty and have substituted other forms of discipline. See, e.g.,
City of Portland, OR, Police Bureau, and Portland Police Commanding Officers
Ass’n, 33 LAIS 64 (Reeves, 2005) (rejecting demotion in favor of suspension);
Int’l Ass’n of Firefighters L. 344 and City of Detroit, 18 LAIS 2052, 96 LA 995
(Roumell, 1991) (approving suspension portion of proposed discipline, but
rejecting 6-month demotion); City of Key West, 106 LA 652 (Wolfson
1996) (police captain’s demotion for inappropriate statements to female officer
rejected, suspension imposed); Ohio Dep’t of Highway Safety, 103 LA 501
(Feldman 1994) (demotion too severe; employee reinstated without back pay);
Southern California Rapid Transit Dist., 100 LA 701 (Brisco
1992) (demotion because employee used profanity to demean supervisor converted
to suspension without pay). There also have been occasions where arbitrators
have approved demotion, but to a job category above the level proposed by the
employer. Fraternal Order of Police Lodge 177 and City of
On the other hand, if the
demotion is nondisciplinary – i.e., the employer has acted because it no longer
believes the individual can perform the job competently-then an arbitrator’s
approach is likely to be different.
According to Chief Sandvik, he decided to
demote the Grievant because he had doubts about the Grievant’s ability to serve
as a supervisor. The Chief notes that a short
time before the July 31 car stop incident, the Florida Department of Law
Enforcement received an anonymous complaint concerning a possible false arrest
involving a member of the Grievant’s Crime Suppression Team. An affidavit that
was gathered as part of the investigation was misleading or false in key
respects, including the failure to identify witnesses to the event. The
affidavit was attested to by the Grievant. In the Chief’s view, the witnesses
were present at the arrest incident and the Grievant knew it, yet the Grievant
did not insure the witness names were included in the affidavit-even though it
would be difficult to verify what had transpired during the arrest without
speaking to the witnesses. Upon review of the FDLE report, Chief Sandvik concluded there was very little basis for making
the arrest and the city was fortunate it was not sued. This earlier incident
had prompted the Chief to have concerns about the Grievant’s candor.
The Grievant’s performance at
other times also has been criticized. The record includes several counseling
forms issued to the Grievant by his superiors dating from 1999 to 2003,
covering different types of infractions. Under Department policy, SOP 208,
letters are not considered discipline. (Although the labor agreement does not
address how these counseling forms may be used in connection with discipline or
demotion, it provides that “written reprimands” more than three years old may
not be considered in promotion actions.) One of the counseling letters involves
an exchange of inappropriate language with dispatcher N__; that event, where
the exchange appears to have been somewhat playful and not serious, and was
mutual, resulted in both employees being counseled. In another instance, the
Grievant was counseled for failing to make a full disclosure to his superior,
Capt. Green, when Green was investigating allegations of harassing-type
activities among members of the squad. Also included is one written reprimand
issued to the Grievant in 2002, the lowest form of “official” discipline,
relating to an incident when a prisoner was left in a cell for an excessive
length of time.
The record also includes testimony that the Grievant previously was
counseled regarding his interaction with the dispatchers. Specifically, the Grievant once threatened to issue a counseling
letter to a dispatcher for work he perceived as subpar.
The Grievant was instructed not to counsel the dispatchers himself, but instead
to bring any dispatcher performance problems to the attention of their
supervisor for action.
Chief Sandvik
noted the Grievant admitted he had declared to N__ that he “didn’t give a damn
about the citizens of Bartow,” and also admitted he
had shown poor judgment on the night of July 31. Based on the exchanges between
the Grievant and Captain Green following the July 31 incident, it was Chief Sandvik’s view the Grievant was deceptive or misleading to
Capt. Green in his account of what had transpired.
In Chief Sandvik’s
view, the incident involving the Grievant on July 31 was a routine traffic
stop, and the Grievant was not in any danger and had backup. In his opinion,
the dispatchers were entirely correct to dispatch officers to the domestic
disturbance call, and it was not even a close choice. Thus the Grievant’s
initial assessment of the overall situation demonstrated poor judgment, which
the Grievant then compounded by “berating” the dispatchers.
Chief Sandvik
testified this was the first time he had demoted a sergeant on the force, but
it also was the first time he had concluded an employee of the Grievant’s rank
had been untruthful when reporting to senior management of the Department.
With due respect to the Chief, I
find the record surrounding the Grievant’s performance as a sergeant generally,
and the events of July 31, 2004, specifically, are not quite so clear-cut as it
relates to the central question in this proceeding, i.e., the Grievant’s
competence to perform the work of a police sergeant. For example, the record
includes the Grievant’s annual performance reviews throughout his tenure as a
sergeant from 1998 to 2004. The last such evaluation was issued by Capt. Green
on May 28, 2004. Of the 20 factors on which the Grievant was evaluated, he was
found to “exceed” expectations on 13, and “meet” expectations on 7. Capt. Green’s
narrative is effusive in praising the Grievant’s work as head of the Crime
Suppression Team, characterizing him as a “very hard working and dedicated
supervisor. I am very pleased with [the Grievant’s] performance during the
evaluation period.” On the same May 2004 evaluation, Chief Sandvik
says he is “extremely impressed” with the Grievant’s
performance, and the Crime Suppression Team “has reduced property crime
in the city.” In turn, the City Manager-also on the same form-declares “Excellent
evaluation! ... Your dedication and hard work is paying off and is appreciated.”
In what must be a bitter irony for the Grievant, his May 2004 performance
review is the most highly favorable evaluation received during his entire six
years as a Sergeant on the Bartow police force.
Further, the Grievant’s credible
account of the circumstances underlying his attempt to stop the vehicle on July
31 also show the event was not a “routine traffic stop” to ticket a car without
brake lights. The Grievant’s interest in the vehicle was prompted by his
observing the car wandering through a known drug market area at
That having been said, I also find the poor judgment shown by the
Grievant on July 31 and soon thereafter, combined with prior incidents cited in
the record, show the City had just cause to conclude the Grievant should be
relieved of supervisory duties and demoted.
First, after the failed traffic
stop, the Grievant’s first reaction was to return to headquarters and berate
Dispatcher N__ for allegedly failing to provide backup to him and poor
prioritizing. Both dispatchers (N__ and DeSalvo)
testified the Grievant had engaged in similar kinds of conduct before, pulling
dispatchers aside and questioning them until, literally, they were on the verge
of tears. The Grievant had been counseled before to be cautious in his
interactions with the dispatchers, and should bring concerns about dispatcher
performance to their regular supervisor rather than take it upon himself to “fix”
the problem. In his role as a supervisor, it was incumbent on the Grievant to
set an example for proper treatment of Department employees (particularly
subordinates) and to operate within the proper limits of his role. On the
record before me, I conclude the Grievant was abusive toward the dispatchers on
the morning of July 31, and this was not an isolated event.
Next is the Grievant’s
exclamation he “didn’t give a damn” about the citizens of Bartow.
Did the Grievant mean this literally? I don’t think so, inasmuch as the Grievant
plainly had provided valuable service to the citizens for years. However, this
outrageous comment is important. Even uttered only within the confines of
police headquarters and to other Department personnel, there is always the
potential for public disclosure. This kind of thoughtless declaration holds the
potential for very real damage to the Department and its relationship with the
citizens. An important quality of leadership is the ability to exercise a
reasonable measure of self control; for an employee with law enforcement
authority, this is especially important. The comment demonstrates a fundamental
and disturbing failure on the Grievant’s part to step back and assess the
events of the traffic stop and dispatch clearly. The Grievant then compounded
his mistake by awakening Communications Supervisor Kim Johnson at about 5:00
AM, more than an hour after the failed traffic stop. This was not an emergency
situation that required a supervisor to be roused during her off-duty hours,
and again suggests the action of an employee preoccupied with his own agenda
and prone to losing perspective. The Department reasonably can expect better in
a supervisor.
Finally, there is the Grievant’s
report to Capt. Green. It was the Grievant himself who brought the events of
July 31 to the attention of Capt. Green on August 2-not to warn Capt. Green
that he (the Grievant) may have stepped over the line in some way, but instead
to continue his complaint that Dispatcher N__ had not performed her job
correctly and had jeopardized his safety. By this time, the Grievant knew
Communications Supervisor Johnson was investigating the matter. In addition,
enough time had elapsed that the Grievant himself should have been able to form
a better assessment of the situation and perhaps regain some perspective.
However, as Capt. Green noted in his testimony, at no time during his August 2,
report did the Grievant mention the encounter with the dispatchers, nor was
there any acknowledgment by the Grievant that he in fact had backup on the morning
of July 31, even if this fact may have been omitted from the CAD printout.
Like Chief Sandvik,
I find the Grievant’s report to Capt. Green was misleading. It is unclear
whether the Grievant affirmatively intended to mislead Capt. Green, or simply
did not bother to conduct the minimal inquiry needed to confirm the facts. In
connection with a management decision to relieve him of supervisory duties
because the Grievant lacked the level of judgment needed for the job, it makes
little difference. After all, it was the Grievant who chose to bring the report
alleging dispatcher error to Capt. Green and initiate an inquiry into the
events of July 31. Before doing so, the Grievant had the opportunity to
research the situation further, either waiting for more feedback about the
situation from Johnson or speaking with other police officers who were on duty
July 31 and who heard the radio traffic (or even the three officers who
provided backup to the Grievant at some point). Instead, the Grievant’s report
of the July 31 event omits key facts that the Grievant knew or should have
known, and had an obligation to share with his superior.
Award
Standing by themselves, I find that neither
the Grievant’s inappropriate interaction with the dispatchers nor his grossly
inappropriate statement regarding the citizenry would warrant demotion.
However, when these incidents are considered along with his incomplete and
misleading report to Capt. Green two days later, and also considered alongside
a variety of earlier incidents noted in the record, I find the Chief was
justified in concluding the Grievant lacked the qualities needed to perform as
a supervisor.
I therefore find the Department
had just cause to demote the Grievant. The grievance is DENIED.
* Selected by parties through
procedures of the Federal Mediation and Conciliation Service.