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In re
City of Bremerton
and
Bremerton Police Officers Guild
121
LA (BNA) 915
September
8, 2005
William F. Reeves, Arbitrator
Parties
The Bremerton Police Department
(“Department” or “Employer”) provides law enforcement services in the City of
Bremerton (“City”). The Bremerton Police Officers Guild (“Guild” or
“Association”) represents all full-time and part time uniformed employees holding
the rank of sergeant or below in the Department including M___ (“Grievant”),
who is a Patrol Officer with the Department. The Department and Guild are
parties to a collective bargaining agreement effective January 1, 2003—December
31, 2005 (“CBA”), which is applicable to the instant
grievance.
Background and Facts
The Explorer Program
The Department has had an
Explorer Program for a number of years, although it was neither emphasized nor
very active prior to 2000. The Explorer Program had its roots with the Boy
Scouts of America. The purpose of the law enforcement branch of the Explorer
Program is to educate and involve youth in police operations, to interest them
in possible law enforcement careers, and to build mutual understanding.
In 2000, Lt. Timothy Lopez was
promoted to Operations Lieutenant and took over responsibility for the Explorer
Program. Lt. Lopez is a strong advocate of the Explorer Program, and he set up
training programs, activities, weekly meetings, and sought out advisors for the
program. According to Lt. Lopez, the program grew from 8 or 9 participants to
25 participants under his tutelage. The Department's Explorer Program was open
to youths and young adults from 14 years of age through the end of the calendar
year of their 21st birthday.
Lt. Lopez also expanded the
original Boy Scout concept by making the Department's Explorer Program a form
of community outreach program specifically targeting at-risk youth from
economically disadvantaged and single-parent families. The Explorer Program
provides the youth with both classroom training in law enforcement, annual
academy training, in-house training, annual
competitions against other Explorer Programs, and the opportunity to ride with
officers on patrol. Explorers have their own Manual, and they are instructed to
obey the direction of all police officers. Parental permission is required for
the young men and women to participate as Explorers in the program, and the
Department commits to use their best efforts to keep the Explorers “safe.”
The Explorer Program is
administered by Advisors, who are full-time Officers. One of the Advisors is
designated as the Lead Advisor who reports directly to the Administrative
Lieutenant and has program authority over the other Advisors. The Advisors
participate in recruiting Explorer applicants, supervise Explorer meetings,
accompany Explorers on trips and activities, and provide counseling and
guidance to many of the Explorers.
Part of the Explorer Program, consists of ride-alongs
wherein Explorers are assigned to ride with an Officer during his or her normal
shift. The Explorer Program envisions Officers volunteering to participate in
the ride-along program. The testimony reflects that reality was not consistent
with that vision. While a number of Officers and Advisors voluntarily
participated in the program, some Officers were simply assigned an Explorer to
ride with them by the shift sergeant. This
assignment was typically made on the basis of seniority, i.e., the less senior
Officers were simply assigned an Explorer as a ride-along.
Explorer/Officer
Non-Fraternization Policy
Before 2003, the Department did
not have an Explorer/Officer non-fraternization policy. In late June 2003, Lt.
Lopez's attention was directed to this lack of a non-fraternization policy by
two separate items. Lt. Lopez received an e-mail containing an article on
criminal sex abuse of teenagers by police officers in the “Cop-Scout” program,
and an incident involving a deputy sheriff in a nearby jurisdiction who was
indicted, or convicted, of sex with an underage Explorer (“K___ Incident”). Lt.
Lopez began efforts to revise the Explorer Manual and the Standard Operating
Procedures; and he embarked upon a program to immediately institute a
non-fraternization policy between Explorers and Officers. According to Lt.
Lopez's June 30, 2003 memorandum to the file, he met with the swing shift line
up on June 25, 2003, the day shift line up on June 30, 2003, and the third
shift lineup on July 2, 2003. Lt. Lopez's July 2 2003 entry to his memorandum
states in part:
I advised that any innuendo
of impropriety with an Explorer with (sic) an officer would be investigated
vigorously. I also advised that no fraternization was allowed between an
officer and Explorer outside department sponsored events unless cleared by
myself or another command staff officer.
Many police officers'
recollections do not comport with Lt. Lopez's memorandum and recollection.
Officer Matt Thuring 1 surveyed twenty-four (24)
patrol officers, of which only seven (7) remembered any Explorer-related
training given at lineup, and only three (3) of those remembered the specific
training identified by Lt. Lopez. Both Officer Thuring
and Grievant contend they were never advised of an Explorer non-fraternization
policy by Lt. Lopez. Officer Thuring and Grievant
recall discussions relating to the K___ incident, and both Thuring
and Grievant understood it would be inappropriate to fraternize with under-age
Explorers. However, they did not understand Lt. Lopez to be issuing a blanket
non-fraternization policy which included all Explorers.
The Explorer Manual
The Explorer Program has its own
manual which is issued to, and receipt acknowledged by, every Explorer. The
Explorer Manuals were not issued to Officers (except for Advisors), and the
testimony at the hearing revealed very little knowledge of the Explorer Program
by those Officers who were not involved in the program as an Advisor.2
Up until at least October 2003,
the Explorer Manual in effect was the December 2001 revised manual, which did
not address the subject of fraternization between Explorers and Officers. As
part of Lt. Lopez's efforts to adopt an Explorer/Officer non-fraternization
policy, a complete rewrite of the Explorer Manual was undertaken.
Included in the New Explorer
Manual (Reviewed 10/2003) is the following:
Introduction to
the Manual
This manual is an official
publication of the Bremerton Police Department. It is issued with the authority
of the Chief of Police and contains the policies, procedures, and regulations
related to Law Enforcement Exploring Post #1911 of this department. These
policies, procedures, and regulations are established to guide all Explorers in
carrying out their duties and responsibilities.
Assignment of the Manual
All personnel assigned to
the Explorer Unit will be provided a copy of this manual.
A. Each recipient will be
provided certification that they have read and understand the policies and
procedures set forth in the manual. ...
C. Revisions, supplements
and page changes will be disseminated by control number to each person who
possesses a manual.
Goals, objectives and
special policies
3.7. Fraternization
3.7.1. Off duty contact and/or association between
Officers and Explorers will only be permitted with the permission of the Post
Commander and the parents of the Explorer and it will be for events or actions
that are not unreasonable or could be construed as inappropriate in nature.
According to the Department's
Explorer Manual Signature Form, the New Explorer Manual (Reviewed 10/2003), was
first distributed in November 2003. The Commissioned Officers receiving and
signing for the New Explorer's Manual were the Officers directly involved in
the Explorer Program, e.g., Lt. Lopez, Lead Explorer Advisor Pierson, and
Explorer Advisors Fatt.3 The majority of Explorers received their New Manuals
on December 17, 2003.
The New Explorer Manual was not
issued to the remainder of the commissioned Officers via the Department's
Explorer Manual Signature Form. According to Lt. Lopez, on October 19, 2003 he
distributed a copy of the New Explorer Manual in every officers'
box. Grievant and Officers
Thuring, Bernsten, Vertefeuille, and Grievant testified that they did not
receive a copy of the New Explorer Manual. Officer Thuring
contacted twenty-four Officers who denied receiving the New Explorer Manual.
The New Explorer Manual was not distributed to the Guild for review.
The SOP Manual
The Department maintains a set
of Standard Operating Procedures (“SOP”) in a Manual which is issued to every
Officer. As with any policy and procedure manual, the Officers are expected to
familiarize themselves with, and follow the procedures. Whenever the Department
updates the Manual, Officers are issued a General Information Bulletin (“GIB”)
which identifies changes to the SOP Manual, and includes revised pages for the
Manual.
Officers acknowledge receipt of
the GIB, and they must update their SOP Manuals.
On November 19, 2003, the
Department issued GIB 03-11 which contained SOP Manual revisions effective
December 1, 2003. The GIB notified Officers of a new section on the Explorer
Program contained in Chapter 10. The new section provides:
10.4 Explorer
Program
10.4.1. Explorer personnel
are volunteer youth between the ages of 14 and 21. The program teaches and
provides a basic knowledge of the law enforcement career and Department
operations
10.4.2. Operations
performed by the Bremerton Police Explorers are governed by the Explorer
Manual.
10.4.3. The Explorer
program is assigned to Support Services and is under the supervision of the
Community Resource Unit.
10.4.4. Department
personnel that have an interest in participating in this mentor program and are
interested in taking on the roll of an advisor should submit their interest to
the Support Services Lieutenant.
10.4.5. Personnel utilized
as advisors, mentors or volunteer to work with the program are required to
read, understand and comply with Department policy as outlined in the Explorer
Manual.
10.4.6. Explorers are not
to be used in assignments requiring commissioned police authority. Explorers are
authorized to volunteer their services within the Department and in community
services under the direction and supervision of law enforcement personnel.
10.4.7. Non-department
personnel interested in working with the Explorer program will be screened and
a background check will be completed.
Grievant's Conduct
Grievant has been a police officer with the Department since April
2003. Prior to his employment with the Department, Grievant was a police
officer with the City of Seattle for three years. Before his career as a police
officer, Grievant served in the U.S. Navy for approximately 12 years. At the
time of the events herein, he was approximately 32 years of age.
At the time of the conduct in question, MH was a member of the Explorer
Program. MH joined the Explorer Program in 2002 when she was 17 years old after
being approached by two Bremerton Police Officers as part of the Department's
Explorer “out-reach program.” MH lived in a
low income area of Bremerton, West Park, and came from a single-parent family.
She was a high school student. She lived with her mother and her mother's
boyfriend. The relationship between the mother's boyfriend and her was not
positive; however, MH had good grades and had not had any problems with the
authorities.
MH subsequently attended
Explorer meetings and became interested in the program. Ultimately, MH enrolled
in the program with the permission of her mother. She attended academies,
classroom training, in-house training, and competitions. She also went on ride-alongs with officers.
Generally, Officers and Explorer
Advisors described MH as very talkative and very immature for her age. Officer
Floyd May, an Explorer Advisor, described MH as outgoing, bubbly, friendly,
silly, and naive. MH talked constantly and at a loud level inside the patrol
car making it hard for the officers to use the radio. Officer May also thought MH's comments and responses showed a lack of common sense
given her age level. Similar testimony was elicited from Officer/Advisor Daniel
Fatt, Officer Jason Vertefeuille,
Lt. Lopez, Officer Spencer Bernsten, and
Officer/Adviser Karen Pierson. I had the opportunity to observe MH as she
testified during the hearing. MH appeared and acted like someone between
sixteen year and eighteen years old. (She is now 21). MH had some difficulty
understanding complex questions, but appeared to have a good memory for dates
and detail. All of the Advisors commented they spent additional time with MH
providing life-skill counseling which gradually improved MH's
conduct and increased her maturity level.
MH and Grievant first met at a
crime scene in approximately May, 2003. Grievant was guarding the perimeter of
a crime scene, and a group of Explorers arrived to help search the site. Later,
as part of his duties as a low-seniority police officer, Grievant took
Explorers on ride-alongs. During the first of these
ride-alongs, Grievant was directed by his sergeant to
participate in the ride-along program. At this time, Grievant was still on
probation and at the bottom of the seniority list. MH rode along with Grievant
four (4) to six (6) times between late August and October 2003. Grievant
described his initial impression of MH (who was 19 at the time) as obviously
over 18, with a maturity level consistent with a nineteen year-old.
After several ride-alongs together, Grievant
“thought a relationship was possible.” 4 Toward the end of October, Grievant
told MH she could no longer accompany him on ride-alongs
because he wanted to avoid a conflict between their possible personal
relationship and riding together as an Officer and Explorer.
MH and Grievant began “dating” in late October or early November. In
January 2004, they had intercourse on three occasions; the first time shortly
after MH's twentieth birthday. The “dates” consisted
of drives around town, parking, and kissing. Grievant picked up MH a short
distance from her home or at nearby Olympia College. The “dates” and sexual
encounters were of a relatively short duration, and did not involve outings to
restaurants, movies or other social events.
Both Grievant and MH kept their relationship secret. Grievant
acknowledges telling MH to keep their relationship secret. Grievant testified
that he kept the relationship secret because he did not want either his peers
or his girlfriend to find out about his relationship with MH, and he thought MH
could be disciplined by Explorer Advisor/Officer Pierson because Pierson was
angry at Grievant.5 Grievant also stated MH
wanted to keep the relationship secret from her mother because she was not on
very good terms with her mother. MH and Grievant's sexual relationship ended in
February 2004.
MH says she and Grievant never discussed any anti-fraternization
policy, but she does recall Lopez telling her she was not to fraternize with
police officers. MH testified that the relationship with Grievant was
consensual and occurred off duty.
The Investigation, the charge
and the discipline
In April, 2004, Department
personnel discovered a series of e-mails between MH and Grievant which
indicated the existence of a personal relationship between the Officer and
Explorer. MH was confronted about her relationship with Grievant and admitted
the relationship. On April 12, 2004 6, MH provided a written statement to the
Department, and was interviewed again on April 19, 2004 as a part of the
Department's internal investigation. MH was terminated from the Explorer
Program because of the Explorer's non-fraternization policy. The Department
undertook an in-depth internal investigation which included interviews with
Officer Meade on the May 13, 2004 and June 14, 2004.
On August 2, 2004, the
Department delivered a Notice of Charge to Grievant which gave notice of a
proposed ten-day suspension without pay. A pre-disciplinary hearing was held on
August 9, 2004; the hearing was attended by the Employee and the Guild
President, Matt Thuring. The hearing was conducted by
Chief Forbes. On August 13, 2004, Chief Forbes issued a Notice of Discipline,
suspending the Employee for ten (10) days without pay. Subsequently, at the
request of the Guild President, the Bremerton Police Chief permitted Officer
Meade to use five (5) days of vacation as a part of the ten (10) days'
suspension.
On August 16, 2004, the Guild
grieved the suspension seeking to set aside the just cause finding and the
imposition of ten (10) days' suspension. The grievance was processed in a
timely fashion, and ultimately the matter was appealed to arbitration in
accordance with the CBA.
Issue
The parties stipulated to the
following issue statement:
Did Employer have just
cause to suspend Grievant for ten days?
If not, what is the proper
remedy?
Parties' Arguments
Employer's Arguments
The Department contends it proved Grievant was guilty of wrongdoing
because Grievant: 1) violated a direction by command staff not to fraternize
with Explorers; and 2) violated the specific policies and procedures contained
the New Explorer Manual as referred to in the SOP Manual.
In response to the Guild's arguments, the Department contends: 1) The
10-day suspension was a reasonable and appropriate discipline because the
Department considered all relevant factors; 2) Grievant was not disparately
treated; and 3) Grievant was afforded due process.
Guild's Arguments
Guild contends the Department
failed to prove its case because Employer did not have “just cause” to
discipline Grievant. Specifically, Guild contends:
1)
Grievant was not given
reasonable notice of the charges he faced for violating the rules in question;
2)
Grievant was not given
reasonable notice of the rule to be followed;
3)
Grievant was not given
reasonable notice of the penalty he faced for violating the rules in question;
4)
The Department did not
consistently enforce the stated rules with regard to fraternization situations;
5)
The Department's rules
at issue were interpreted unreasonably or unlawfully, and the interpretations
did not bear a rational relationship to the Department's operations;
6)
The Department did not
conduct a thorough and fair investigation;
7)
The Department did not
comply with contractual and legal due process;
8)
The suspension must be
reversed because Grievant did not violate the identified rules;
9)
The penalty of
discharge (sic) must be reversed because Grievant was not treated the same as
other similarly situated employees;
10) The penalty of discharge (sic) must be reversed because the
Department failed to impose proper progressive discipline;
11) The Department has a limited interest in the
Explorer-related rules;
12) The degree of discipline administered by the Department is
not reasonably related to the nature of the offense, Grievant's employment
record, and his service in patrol;
13) The discipline imposed was excessive in light of other
mitigating factors; and
14) The Department contributed to the punished conduct through
its own actions. Additionally, the Guild contends the Department's unilateral
application of the Explorer Manual to Officers violated the CBA.
Opinion
The facts surrounding Grievant's off-duty contact with MH are not
materially in dispute. There is no question Grievant's and MH's
conduct amounted to fraternization. The primary issue in this grievance relates
to whether Employer, as required by CBA 17.1, had just cause to discipline
Grievant for that conduct.
I listened to sworn testimony
from several Officers, and reviewed interviews and reports of the internal
affairs investigation. As one would expect, there are variations in the
testimony. There are many reasons for variations in testimony including the
passage of time, and the differing capabilities to perceive and recollect.
Thus, the fact that I choose to accept the testimony of one officer over that
of another officer, does not necessarily mean I am questioning the credibility
of any officer. I am merely accepting one version of the facts which I find is
more consistent with all of the facts and evidence presented.
Burden and Quantum of
Proof
The parties do not dispute the
Employer's obligation to prove its case by establishing wrongdoing. Regarding
the quantum of proof, Employer argues for the application of a “preponderance
of the evidence” standard while the Guild advocates the adoption of a “clear,
cogent and convincing” standard. The “normal” quantum of proof in arbitration,
as in most civil actions, is the preponderance of the evidence standard. In
situations where proof of the alleged offense would seriously damage the
employee outside the employment relationship (e.g., an allegation of illegal or
immoral conduct), a higher standard of proof is often required. I find no
reason to deviate from the preponderance of the evidence standard in the
instant grievance. I find there is no allegation of illegal or immoral conduct.
Furthermore, Grievant's conduct is not an issue—he has admitted a sexual
liaison with MH, which certainly constitutes fraternization.
Just Cause
“Just cause” is not an easily
defined concept, and no singular formulation of the just cause concept has
received exclusive acceptance amongst arbitrators. An oft quoted formula for
performing a just cause analysis is the “Seven Tests” promoted by Arbitrator
Carroll Daugherty in 1964. In Daugherty's view, if the answer to any of his
seven questions is no, then just cause does not exist for discipline.
Daugherty's questions are:
1. Did the employer give to
the employee forewarning or foreknowledge of the possible or probable
consequences of the employee's disciplinary conduct?
2. Was the Employer's rule
or managerial order reasonably related to (a) the orderly, efficient, and safe
operation of the Employer's business, (b) the performance that the Employer
might properly expect of the employee?
3. Did the Employer, before
administering the discipline to an employee, make an effort to discover whether
the employee did in fact violate or disobey a rule or order of management?
4. Was the Employer's
investigation conducted fairly and objectively?
5. At the investigation,
did the “judge” obtain substantial evidence or proof that the employee was
guilty as charged?
6. Has the Employer applied
its rules, orders and penalties even-handedly and without discrimination to all
employees?
7. Was the degree of
discipline administered by the Employer in a particular case reasonably related
to (a) the seriousness of the employee's proven offense, and
(b) the record of the employee in his service with the Employer? 7
More recently, Arbitrators
Abrams and Nolan have advocated a “systematic theory” of just cause by
exploring the fundamental understanding of the employment relationship as
affected by the collective bargaining agreement. See Abrams & Nolan, Toward
a Theory of Just Cause in Employee Discipline Cases, 1985 Duke L.J. 594
(1985), See also Brand, Discipline and Discharge in Arbitration (1998).
Moreover, a timeless definition
of just cause first provided in 1947 by Arbitrator Harry Platt continues to be
a favorite among scholars. Arbitrator Pratt noted:
It is ordinarily the
function of an Arbitrator in interpreting a contact provision which requires
[just cause] ... not only to determine whether the employee involved is guilty
of wrongdoing.... but also to safeguard the interests of the discharged employee
by making reasonably sure that the causes for discharge were just and equitable
and such as would appeal to reasonable and fair-minded persons as warranting
discharge. To be sure, no standards exist to aid an Arbitrator in finding a
conclusive answer to such a question and, therefore, perhaps the best he can do
is to decide what a reasonable man, mindful of the habits and customs of
industrial life and of the standard of justice and fair dealing prevalent in
the community, ought to have done under similar circumstances and in that light
to decide whether the conduct of the discharged employee is defensible and the
disciplinary penalty just.8
No matter what test or standard
is used, the essence of the just cause principle is the requirement that an
employer must have some demonstrable reason for imposing discipline, e.g., the
reason must concern the employee's ability, work performance, conduct, or
employer's legitimate business needs. Furthermore, the just cause principle
entitles employees to due process, equal protection, and individualized
consideration of specific mitigating and aggravating factors. Finally, the
employer's chosen level of discipline itself must be “just.”
Notice of Rule
The instant grievance involves
Grievant's conduct. It is unfair to punish an employee for conduct the employee
has no reason to know would be unacceptable. In other words, an employer must
announce the rules it expects its employees to follow. The Department contends
it instituted an Explorer/Officer non-fraternization policy both verbally and
in writing. Obviously a written policy provides a clearer directive to an
employee. Accordingly, I will examine that policy first.
The Department's Written
Policy
Policies are usually in writing
because the written word is a more reliable and verifiable form of
communication than a verbal directive. The parties have agreed upon on a
written method of communicating policies to Guild members. CBA Article 16.4
states:
The Police Department Policy Manual will be distributed to all
bargaining unit employees. The employee will acknowledge receipt of and will
become knowledgeable of the Manual's or Policy's contents. All revisions to the
Manual or Policy will be provided to employees for inclusion in the Manual.
Further the Department will inform the Guild of policy revisions prior to
enactment.
Thus, the Department agrees to
communicate its policies through the SOP Manual, and Guild members agree to
become knowledgeable of the SOP Manual's content. Furthermore, the parties
agreed on a method of verifying delivery and receipt of SOP Manual revisions:
“The Department will inform the Guild of policy revisions prior to
enactment.”
I find the Department did not abide by the contract when it distributed
the new Explorer/Officer non-fraternization policy contained in Explorer Manual
Section 3.7. I base my finding on the following. First, the Department did not distribute
the non-fraternization policy to the Guild before it “enacted” the policy. On
direct examination, Lt. Lopez testified that he sent the Explorer Manual to the
Guild for review. On cross examination, Lt. Lopez acknowledged he thought
others in the Department had sent the Explorer Manual to the Guild for review. Chief Forbes, in his August 31, 2004 e-mail to Matt Thuring acknowledged the Department did not distribute the
Explorer Manual to the Union for review and comment. According to Chief Forbes:
“The Guild was not asked to review changes to the Explorer Manual itself, which
governs this youth oriented program....”
Second, the non-fraternization policy is not contained in the Manual.
It is difficult to conceive of a more obscure method of distributing the
Department's written prohibition of fraternization between Officers and
Explorers than the method used by the Department.
Instead of inserting a non-fraternization policy directly in the SOP Manual,
the Department indirectly refers to, and arguably incorporates, the entire
Explorer Manual.9 However, the Department continued its efforts to obfuscate
the non-fraternization policy. SOP 10.4.5 could have stated: “All Officers must
read, understand and comply with Department policy as outlined in the Explorer
Manual,” Instead, SOP 10.4.5 only applies to: “Personnel utilized as advisors,
mentors or [who] volunteer to work with the program.” The Department then
argues “all officers” are “mentors.” If all officers are mentors, then why not
simply state “All Officers.”
Furthermore, SOP 10.4.5 does not
specify which version of the Explorer Manual must be examined. Unlike the SOP
Manual, the Explorer Manual was: 1) Not assigned to
Officers; and 2) GIBs were not issued when the
Explorer Manual was revised or updated. Thus, if an Officer possessed an
Explorer Manual, he or she would not know if the Explorer Manual was current,
and would not be notified of changes to the Explorer Manual.
In summary, the Department
expected an Officer upon receipt of GIB 03-11 to: 1) Review SOP Manual Chapter
10; 2) Assume or conclude that all Officers are “Mentors”and,
therefore, the officer must review and comprehend the Explorer Manual; 3) Find
a copy of the Explorer Manual; 4) Determine that the copy of the Explorer Manual
is current; 4) Review the 34-page Explorer Manual; 5) Determine that Section
3.7 (non-fraternization policy) of the Explorer Manual pertains to
Officer-conduct and not Explorer-conduct; and 6) obey the non-fraternization
policy.
The communication of policy should not be a scavenger hunt. A simpler
and more direct approach would have been to place the non-fraternization policy
directly in the SOP Manual. This direct approach would have complied with the
CBA and provided verifiable notice of the policy to all the Officers.
Because I have found the
Department failed to follow the CBA in adopting the non-fraternization policy
contained in Section 3.7 of the Explorer Manual, I find the written
non-fraternization language contained in Section 3.7 of the Explorer Manual did
not become a Department policy or procedure applicable to Officers including
Grievant.
The Department's Unwritten and Unpublished Rules (Verbal
Orders or Directives)
Even though the Department erred
in its distribution and communication of the written Explorer/Officer
non-fraternization policy, it does not necessarily follow that fraternization
between Explorers and Officers was permitted. It is not possible to specifically
anticipate and prohibit all unacceptable conduct in writing. Thus, an employer
can prohibit conduct through verbal orders or directives. Furthermore, some
conduct is so clearly harmful to the workplace that a reasonable employee would
recognize it as prohibited.
The Department's sudden concern
over the lack of a written Explorer/Officer non-fraternization policy 10 was
addressed by Lt. Lopez's verbal directive pending the Department's issuance of
a written policy. There are widespread differences regarding the message
conveyed by Lt. Lopez. However, there is no question that Lt. Lopez discussed
some form of an Officer/Explorer non-fraternization policy at several
“line-ups.”
On June 25, 2003, Lieutenant
Lopez met with the swing shift lineup and discussed the K___ matter and the CBS
internet article.11 According to Lt. Lopez, he: 1) advised the Officers at
lineup that all of the youth in the Explorer Program were the responsibility of
the Department as a whole, and it was their obligation to keep the Explorers
safe; 2) directed that there was to be no fraternization between any Officers
and any Explorers outside of Department-sponsored events, unless previously
cleared by himself or another command staff officer; and 3) said he would
discipline, to the fullest extent possible, any Officer who did fraternize with
an Explorer.
Lt. Lopez's message was
understood by at least two Officers. Officer Vertefeuille
and Officer Davis approached Lieutenant Lopez to advise
of their outside contacts with two Explorers. Officer Vertefeuille
advised Lt. Lopez an Explorer provided babysitting services for his child. Lt.
Lopez approved this contact, so long as it was also authorized by the
Explorer's parents. Lieutenant Lopez testified that he confirmed the appropriateness
of this contact with the Explorer's parents. Officer Davis advised Lt. Lopez an
Explorer was his daughter's friend, which might bring Officer Davis in contact
with the Explorer. This was also approved by Lt. Lopez, subject to parental
approval.
Lieutenant Lopez also met with
the day shift lineup on June 30, 2003. According to Lt. Lopez he made the same
presentation, and gave the same directive, he had given at the swing shift
lineup on June 25, 2003. Following this presentation, Officer Tincher approached Lieutenant Lopez to advise that he was
involved in a paintball group with four Explorers.
Finally, on July 2, 2003, Lt.
Lopez met with the third shift lineup and made the same presentation. Grievant
attended this third shift lineup. Officer Pierson, who also attended this
lineup, confirmed Lt. Lopez's discussion of the K___ incident and the CBS
articles, and Lt. Lopez's directive prohibiting fraternization between
Explorers and Officers. Officer Fatt, who is also an
Explorer Advisor, also attended the meeting. Officer Fatt
recalled a discussion about the fraternization issue, but he was not paying
close attention because he had heard the same briefing from Lt. Lopez
immediately before the lineup when Lt. Lopez had met with the Explorer Advisors
and discussed the new non-fraternization policy. Pierson was also present at
this Advisor meeting.
The evidence suggests Lt.
Lopez's discussion and directive was remembered by those Officers who were
either involved in the Explorer Program as Advisors, or who had off-duty
contacts with Explorers. The remainder of the Officers
apparently do not remember the directive. At the most, the majority of Officers remember a discussion of the K___ case,
and recall Lt. Lopez's comments as “general information” and not as an order or
directive.12 Grievant recalls Lt. Lopez discussing the K___ incident, and
understood it would be inappropriate to fraternize with under-age Explorers.
However, Grievant stated he did not understand Lt. Lopez to be issuing a blanket
non-fraternization policy which included all Explorers.
Based on the evidence before me, I find Lt. Lopez directed Officers
under his command, including Grievant, not to fraternize with Explorers
apparently did not pay close attention to this directive—perhaps because the
Officers did not have any contact with Explorers in their off-duty hours. Even
though the non-fraternization directive was not communicated to all Officers,
and even though there was no effort by the Department to put the directive in writing,
I find Lt. Lopez's directive was communicated to Grievant. Lt. Lopez's contemporaneous notes indicate he briefed the
third shift lineup on July 2, 2003. The lineup briefing and directive was
recalled and described by Officer Pierson during her testimony. The sign-in
sheet shows Grievant was present during the lineup. I find a police officer has
a responsibility to pay attention during lineups and other
briefings—particularly when the lineup is conducted by a command officer. Lt.
Lopez saw fit to discuss off-duty fraternization between Explorers and
Officers, and issued a directive prohibiting such off-duty fraternization.
Grievant had a responsibility to understand the scope of that directive, and
obey it.
Reasonableness of Rule
Absent any contractual
constraints, employers generally may implement reasonable work rules as long as
they comply with the law and do not contradict the CBA. In this case, the
conduct sought to be prohibited by the employer's work rule involves off-duty
conduct, i.e., no fraternization between Officers and Explorers even when off
duty. In such a case, an employer must establish a nexus, or demonstrable and
harmful connection, between the conduct employer wants
to regulate and the employer's legitimate business interests. One recognized
legitimate business interest is when the conduct would jeopardize the
employer's operations by creating adverse publicity that harms the
organization's public image.
In the instant case, I find the
Department established that unauthorized contact between Explorers and Officers
harm the Department's public image, and the de minimus
impact on an employees right to privacy and freedom of
association. Much of this finding is based on common sense. The Explorer
Program is a “young adult” program administered by the Department. Explorers are not co-workers,
they are young adult volunteers who are there to be guided, and tutored by the
Officers in the Department. It is incomprehensible that the Guild should argue
that the Department cannot prohibit fraternization between Officers and these
young adult volunteers. Even the appearance of an inappropriate encounter
between an underage Explorer and an Officer could damage the viability of the
Explorer Program, and subject the City to litigation expenses.
While the potential harm to the
Department's public image is less in the case of Explorers past the age of
consent 13, sexual relations between Officers and Explorers present a
substantial potential for harm to the City's reputation and the Explorer
Program. In the instant case, the Department did not limit fraternization to
underage Explorers. The non-fraternization policy applies to all Explorers
irrespective of their age. Of course, the oldest an Explorer can be is 21. What
would happen if an Explorer above the age of consent alleged a sexual encounter
with an officer was not consensual? Such an allegation would not be the same as
the allegation by a citizen against an officer. In such a hypothetical
situation, the Explorer's allegation would affect the viability of the entire
Explorer Program, and subject the Department to public scrutiny for not
prohibiting off-duty contact between Officers and members of its Explorer
Program.
The Department provides further
rationale for its policy in Exhibit 3, Page 6, wherein it states:
The purpose of this
standard is so that an Explorer is not put into a compromising situation in
which he/she feels they must compromise their position and comply with the
inappropriate request of a Police Officer, who has greater influence and
authority.
This rationale is similar to the
public policy expressed in RCW 9A.44.093.(1)(b)
wherein the State of Washington has made it a criminal offense for a school
employee to engage in sexual intercourse with a student, even if the student is
more than 16 (or more than 18) years of age, so long as the employee is more
than 60 months older than the student.
Finally, regarding the Guild's contentions about the impact of the
non-fraternization policy on the employees' right to privacy, or freedom of
association, are without merit. I find any
such impact is de minimus. If an Officer and an
Explorer above the age of consent want to have a personal relationship, the
Explorer can quit the Explorer Program and join an Explorer Program in another
nearby community. The non-fraternization policy only applies to Officers and
Explorers in the Department whose personal relationship may be influenced by
their mentor-protege roles.
Consistency of
Enforcement
Proper discipline requires that
rules be enforced evenhandedly and without discrimination. The Guild contends
the Department did not consistently enforce its non-fraternization rule. The
Guild bases its argument on a lack of Department-imposed discipline for other
cases involving either sexual harassment, Officer/Officer
affairs, and other examples which are not comparable with the alleged offense
in the instant grievance.
I find the Guild's argument is
without merit. The Guild acknowledges the Department does not prohibit
fraternization between Officers and Cadets, Reserves, or even other Officers.
Thus, the Guild has failed to establish the Department inconsistently enforced
the same rule as involved in the instant grievance. None of the examples cited
by the Guild involved an Officer and an Explorer, and there was no evidence
that an Officer had ignored or disobeyed a command officer's directive.
Procedural Due Process
In disciplining its employees,
an employer must do so in a manner that is not unreasonable, arbitrary,
capricious or discriminatory. The Guild contends Employer failed to provide due
process in two areas: Reasonable notice of the charges; and a fair
investigation.
Fair Investigation
A meaningful investigation
assures both procedural and substantive due process. Substantively, an employer's
discipline of an employee lacks just cause if the
employer does not bother to verify that cause for the discipline in fact
exists. Procedurally, due process protects an employee from the employer taking
peremptory action without giving the employee the chance to know his or her
accusers and the accusations.
In the instant grievance, I find
the Department conducted a meaningful investigation. The Department advised
Grievant he was the subject of an internal investigation on April 13, 2004. Lt.
Burchett concluded the internal investigation on June
18, 2004. The Guild contends the investigator was biased and the investigation
was tainted, but the Guild offers no real evidence of that bias.
I note Lt. Burchett's
IA summary affirms many of Grievant's contentions. Lt. Burchett
acknowledges: 1) Grievant's on-duty cell phone use did not raise a level of
concern; 2) Grievant no longer allowed MH to ride with him on duty once they
began a personal relationship; 3) the SOP incorporating the Explorer Manual was
not clear; and 4) the verbal orders involving major policy changes were not
followed up with written rules and directives.
However, the mere fact the
investigator chooses to believe one set of facts over another, or reaches a
different conclusion over the meaning of those facts, does not make the
investigation biased. Furthermore, the facts surrounding the Grievant's conduct
are not disputed. The facts in dispute relate to the nature and extent of Lt.
Lopez's verbal directive regarding the non-fraternization policy; the manner of
implementing that written policy, and the right of the City to implement such a
policy. In summary, I find the Department established a prima facie showing of
a meaningful and fair investigation; and I find the Guild has not produced any
evidence to the contrary.
Notice of Charges
An employer must provide an
employee facing discipline precise information about the charges the employee
faces. On August 2, 2004, the Department provided Grievant with an eight-page
document entitled Notice of Charge which: 1) describes Grievant's conduct vis a vis the totality of events
surrounding the relationship between Grievant and MH; and 2) lists the various
provisions in the Civil Service Code, SOPs, and Explorer Manual which the Department
alleges the Grievant's conduct violated. The Notice of Charges does not detail
which aspects of Grievant's conduct violated a particular SOP or Civil Service
Code.
I find the Department provided
sufficient information of the charges facing Grievant. As stated repeatedly,
the facts of Grievant's conduct were not in dispute. The parties clearly
disagree on whether the conduct specified constitutes an offense, but I find
Employer provided Grievant with sufficient information to allow Grievant to
understand the charges against him and formulate a defense.
The Offense
After considering all of the evidence, I find Grievant ignored or
disobeyed a directive from Lt. Lopez prohibiting off-duty fraternization
between Officers and Explorers. I further find
Grievant's conduct violate SOP Chapter 38; Rule 17 wherein Officers are charged
with making an affirmative, consistent effort to observe and comply with
directives. This finding is made despite the Department's abysmally poor job of
communicating the non-fraternization directive to the Officers as a whole. When more than one-half of the
Officers do not recall a non-fraternization directive, there is a serious
communication problem. The Department made no effort to confirm the
directive in writing other than to include it in the Explorer Manual (not the
SOP Manual) five months later. The shift-sergeants neither reconveyed
Lt. Lopez's directive to Officers absent from the lineup, nor repeated the
non-fraternization directive at any other lineups.
I found previously Grievant was present at the July 2, 2003 line up
when Lt. Lopez directed Officers under his command not to fraternize with
Explorers except at Department-sponsored events. Grievant has a responsibility
to pay attention to directives issued by command officers at lineup. Either
Grievant didn't pay attention, forgot the directive, or ignored a directive he
knew or should have known.
Penalty
The concept of “just cause”
requires reasonable proportionality between the offense and the penalty. The
seriousness of the offense will vary depending on such factors as: the nature
and consequences of the employee's offense (the magnitude of the actual or
potential harm), the degree of knowledge the employee had about the rules and
penalties (the clarity or absence of rules); the frequency of the offense; the
impact of the degree of punishment on other employees; and the practices of the
parties in similar cases. Furthermore, the discipline for all but the most
serious offenses must be imposed in gradually increasing levels, i.e.,
progressive discipline. The primary objective is to correct rather than to
punish. Thus, for most offenses, employers should use one or more warnings
before suspensions, and suspensions before discharge. Finally, the penalty
should take into account any mitigating or aggravating factors, such as: the
employee's past employment record.
While I have found Grievant violated the non-fraternization directive
given by Lt. Lopez, my other findings differ significantly from the conclusions
reached by Chief Forbes. The most significant difference is my finding that the
Department never properly implemented a written non-fraternization policy and
included it in the SOP Manual. The discipline meted out by Chief Forbes was
based in part on his finding that Grievant had violated the Department's
written policy and procedure. Thus, I must
reevaluate the appropriateness of the discipline based on my findings which
include the violation of only a verbal directive—given only once to Grievant,
and not confirmed in writing. Furthermore, the non-fraternization directive was
not widely dispersed among the Officers—a majority of the Officers do not
recall the directive being given to them. Finally, at the time the verbal
directive was issued, Grievant and MH were neither engaged in, nor
contemplating, any personal relationship.14
I find the Department did not communicate this directive/policy in a
manner consistent with the seriousness which it attributes to this offense. By
choosing to distribute the non-fraternization directive/policy infrequently and
only orally, the Department effectively diminished the seriousness of the
directive/policy, and lessened the probability that the same message would be
received and clearly understood by all Officers. The evidence shows
numerous Officers did not even recall non-fraternization training occurring at
lineup. Of those few recalling the training, most thought the only prohibition
was against fraternizing with Explorers who were minors. Given the directive's
lack of importance as evidenced by the Department's method of communicating the
directive, and considering principles of progressive discipline, I find it is
not “just” to suspend Grievant for his conduct.
When considering the totality of
Grievant's conduct, and mitigating factors I find the following. In addition to
violating Lt. Lopez's directive, Grievant acknowledged he encouraged MH to keep
their relationship a secret. Grievant went so far as to suggest to MH that she
deny their relationship if questioned by members of the Department. Grievant
had reasons for keeping the relationship secret quite apart from any actual
knowledge of the non-fraternization policy. However, those reasons do not
justify encouraging an Explorer not to disclose the truth to her supervisors.
Integrity is one of the keystones to being a police officer. There is no
justification for Grievant counseling MH as he did. Furthermore, Grievant and
the Guild continue to fail to recognize the potential for overreaching that
exists in Officer/Explorer relationships. Finally, I find no mitigating
circumstances from Grievant's employment record. Grievant was employed by the
Department for less than one year at the time the incident was initially
investigated. Based on the
above considerations, I find a level of discipline above a verbal warning is
appropriate. I conclude an appropriate level of discipline is a written
reprimand.
Award
1. For the reasons stated
herein, the grievance GRANTED in part, and DENIED in part.
2. Employer had just cause to
discipline Grievant for violating a directive of a commanding officer which
prohibited fraternization between Officers and Explorers. Grievant's conduct
falls within the parameters of SOP Chapter 38, Rule 17.
3. The ten-day suspension of Grievant was inappropriate and excessive
in light of the manner in which the non-fraternization directive was
communicated.
4. Grievant's discipline is hereby
modified to a written reprimand which is a “just”disciplinary
action when considering the totality of Grievant's conduct and the lack of
mitigating circumstances.
5. Grievant shall be made whole
for any back pay and other loss of benefits, and his disciplinary record
modified in accordance with this award.
6. Implicit in this award is the
finding that Employer has not effectively adopted a written Officer/Explorer
non-fraternization policy into its SOP Manual.
7. As agreed by the parties, I
retain jurisdiction for a period of 60-days to resolve any issues in
implementing this award.
8. In accordance with CBA
Article 19.8 the parties shall each pay an equal portion of my fees and
expenses.
Notes
1 Officer Thuring
is also Guild President.
2 Officer Daniel Fatt has been an Explorer advisor for three years. He
testified he was not familiar with Explorer Program prior to becoming an
advisor. Thuring has been a police officer for 12
years. He has never had Explorer ride with him.
3 One notable exception is the
Explorer Manual assigned to Grievant in May 2004. After the IA investigation
began, Grievant sought out a copy of the New Explorer Manual. He was assigned a
numbered copy.
4 According to Grievant, MH made
overtures toward him first. MH started calling and e-mailing Grievant. She then
let Grievant know she was interested in him sexually by saying she found him
attractive and making up a sexually explicit song while they on ride-along
together. MH does not recall saying anything to initially stimulate Grievant's
interest. According to MH, Grievant told her he found her physically attractive
and then said: “How do you feel about that?”MH told
Grievant she “felt the same way.”
5 According to Grievant, he had
rejected advances made by Pierson. Pierson denies making any such advances. In
his IA interview, Grievant does not mention his concern of Pierson or from his
peers.
6 On April 12, 2004 when the
Department first learned of the off-duty relationship between Grievant and MH,
Grievant was still a probationary employee and subject to discharge “at the
sole discretion of the City ... without recourse to the grievance procedure.”
7 Koven
& Smith, Just Cause: The Seven Tests (1997).
8 Riley Stoker
Corp., 7 LA (BNA) 764 (Platt, 1947).
9 The SOP Manual was revised
effective December 1, 2003 by GIB 03-11. As part of the December 1, 2003
revision, Officers were advised in SOP 10.4.5: “Personnel utilized as advisors,
mentors or volunteer to work with the program are required to read, understand
and comply with Department policy as outlined in the Explorer Manual.”
10 Two separate incidents made
the Department aware of its lack of an Officer/Explorer non-fraternization
policy. On June 25, 2003, Officer and Explorer Advisor, Wendy Davis, provided
then-Lieutenant Lopez with an internet article prepared by CBS regarding police
officers and firefighters sexually abusing Explorers. During the same time, Kitsap County Deputy K___, was being prosecuted for a
sexually abusing a former cadet.
11 Lt. Lopez testified he handed
out Xerox copies of the CBS and K___ articles at these briefings. Lt. Lopez's
recollection is not corroborated by anyone. Those officers that remember the
briefings recall a copy of the articles being available but not
distributed.
12 As noted earlier, Guild
President Officer Matt Thuring surveyed 24 patrol
officers, of which only seven (7) remembered any explorer related training
given at lineup, and only three (3) of those remembered the specific training
identified by Lt. Lopez.
13 The Age of Consent in
Washington is 16. However, it is a crime for a person at least 60-months older
than a person between 16 and 18 years old to have sexual intercourse with the
younger person if ALL of the following conditions exist: 1) The older person is
in a “significant” relationship with the younger person; 2) The older person is
in a position within that relationship; and 3) The older person uses that
supervisory position in order to have sexual intercourse with the younger
person. See RCW 9A.44.093.
14 This is significant to the
extent it is consistent with Grievant not paying close attention during Lt.
Lopez's lineup briefing on July 2, 2003 and, therefore, not remembering Lt.
Lopez's directive—instead of Grievant directly disobeying that directive. On
July 2, 2003, Grievant was neither engaged in, nor contemplating, any off-duty
personal relationship with an Explorer. The evidence shows that although MH and
Grievant first met in May 2003, they did not associate with each other until MH
was assigned to Grievant as a ride-along Explorer in August 2003. Grievant and
MH did not form a personal off-duty relationship until late October 2003.
Relevant
Contract Provisions and Directives
Collective Bargaining Agreement
Article 17 Management
Rights
17.1 Any and all rights
concerned with the management and operation of the Police Department are
exclusively that of the City unless otherwise provided by the terms of this
Agreement. The City has the right, among other actions, to adopt rules for the
operation of the Department and conduct of the employees, to discipline,
suspend or discharge employees for just cause, to assign work and determine duties
of employees, to determine number of personnel to be assigned duty at any time,
to determine and introduce new work methods or facilities to increase
productivity for operation of the Department and to perform all of the
functions not otherwise expressly limited by this Agreement; provided, nothing
herein shall be construed as a waiver of collective bargaining rights conferred
on the parties by RCW.
Article 16 Personnel
Practices
16.1.1 Probationary Employee:
All employees serving a twelve (12) month period commencing upon the initial
due date of hire as a permanent employee during which the employee may be
discharged at the sole discretion of the City, consistent with applicable Civil
Service Rules and Regulations (Section 12-Probation) and without recourse to
the grievance procedure.
Article 19 Grievance
Procedure
19.7 Powers and Duties of
Arbitrator: It shall be the duty of the arbitrator to conduct a hearing on the
issue or issues submitted by the parties for decision. The hearing shall be
kept informal and private. The arbitrator shall interpret the provisions of
this Agreement as they apply to the issue or issues submitted for decision and
shall not add to, subtract from, nor in any way otherwise alter or recommend
the alteration of the terms and conditions of the Agreement in deciding the
matter. Within thirty (30) days of the close of the hearing or submission of
briefs, whichever occurs later, the arbitrator shall render a written decision,
which shall be binding upon the parties. The arbitrator shall conduct the
arbitration hearing in conformance with the Voluntary Rules for Labor
Arbitration of the American Arbitration Guild (sic).
Civil Service Code 19.05
Discipline-Good Cause-Illustrated
The following are declared to
illustrate good causes for discharge and other forms of discipline; discharge
and discipline may be made for any other good cause:
(A) Incompetency,
inefficiency, inattention to duty, dereliction of duty, or violation of Department
Rules.
(B) Dishonesty, intemperance,
immoral conduct, insubordination, discourteous treatment of the public or a
fellow employee, any other act of omission or any other willful failure on the
part of the employee to properly conduct themselves. * * *
(H) Willful or intentional
violation of any lawful and reasonable regulation, order or direction made or
given by a superior officer or supervisor.
* * *
(Q) Conduct unbecoming an
employee of the City.
Bremerton Police Department Manual
Chapter 38, Rule 16:
Insubordination
Members shall willfully observe
and obey the lawful verbal and written rules, duties, policies, procedures and
practices of this organization. They also shall subordinate their personal
preferences and work priorities to the lawful verbal and written rules, duties,
policies, procedures and practices of this agency as well as to the lawful
orders and directives of supervisors and superior command personnel of this
organization. Members shall willfully perform all lawful duties and tasks
assigned by supervisors and superior-ranked personnel, direct, tacit or
constructive refusal to do so is insubordination.
Chapter 38, Rule 17: Knowing,
Observing and Obeying all Directives, Rules, Policies, Procedures
Members shall make an
affirmative, consistent effort to observe and comply with the directives,
rules, policies, procedures and traditions established for the effective,
efficient and safe operations of this organization. This standard applies to
policies, procedures and practices that are written as well as those
established by past patterns or practices.
Affirmative effort as the term
is used here means to self initiate acceptable ways to comply. In other words,
look for ways to comply with the standard and do not look for the exceptions to
the standard.