Marion County Sheriff
and Marion County Deputy Sheriff's
This Arbitration arises pursuant to Agreement between MARION COUNTY DEPUTY
SHERIFFS' ASSOCIATION ("Association"), and MARION COUNTY SHERIFF,
("Sheriff"), under which LUELLA E. NELSON was selected to serve as
Arbitrator and under which her Award shall be final and binding upon the
Hearing was held on October 8, 1991, in Salem, Oregon.
The parties were afforded full opportunity for the examination and
cross-examination of witnesses, the introduction of relevant exhibits, and for
argument. Both parties filed
post-hearing briefs on or about November 4, 1991.
On behalf of the Association:
E. Hoag, Esquire, Aitchison, Hoag, Vick & Tarantino, 209 West Fifth, Eugene,
On behalf of the Sheriff:
Robert Cannon, Esquire, Legal Counsel, Marion County, Marion County Courthouse, 100 High Street NE, Salem, Oregon 97301-3670.
Was there just cause for the discipline of James May and Terry Sheets; if not,
what shall be the remedy?
RELEVANT SECTIONS OF AGREEMENT
ARTICLE 28 - DISCIPLINE AND DISCHARGE
Section 1. Disciplinary
action may be imposed upon an employee only for just cause using the principles
of progressive discipline.
Section 2. ... The following types of discipline may be used:
Suspension Without Pay: Suspensions
are a commonly used form of punishment after an oral and written reprimand.
However, it can be used sooner based upon the severity of the
RELEVANT GENERAL ORDER
VOIDING OF CITATIONS, G. O. #4-51-285 (effective 2-1-85)
After original issuance, citations will be voided only when circumstances
reveal that the citation was issued in error.
After original issuance and before voiding a citation, the shift
commander will be advided [sic] and informed of the reason for voiding.
If the shift commander concurs, the available copies of the
citation will be marked VOID across the face.
A brief explanation will be noted on the back, and the citation turned in
to the division commander.
If both the shift commander and the division commander concur, they
should initial the back of the form.
Voided citations will be filed with Records Section.
Persons to whom citations were issued and then voided will be advised of
the reason and if appropriate, reissued a correct citation.
If a citation has been forwarded to the court and has been issued in
error, a request for dismissal will be made in writing, explaining the reason,
through the division commander.
Each citation and each copy of the citation including the defendant's
copy must be accounted for prior to the voiding of a citation.
CITED SECTIONS OF MARION COUNTY PERSONNEL RULES
CONDUCT, DISCIPLINE, APPEALS, RESIGNATION AND LAYOFF
3 CAUSE FOR DISCIPLINARY ACTION:
Any action which reflects discredit upon conduct as an employee ... shall
be considered good cause for disciplinary action.
Improper action by an employee in an official capacity tending to bring
the county into discredit, or which tends to affect the employee's ability to
perform or any improper use of the employee's position as an employee for personal
advantage shall also be judged good cause.
In addition, good cause includes but is not limited to the following:
K. Misconduct in the performance of
duties as an employee;
N. Willful violation of ... any
provisions of departmental rules.
CITED PROVISIONS OF THE CRIMINAL JUSTICE CODE OF ETHICS
I will never act officiously or permit personal feelings, prejudices,
animosities, or friendships to influence my decisions.
Without compromise and with relentlessness, I will uphold the laws
affecting the duties of my profession courteously and appropriately without
fear or favor, malice or ill will, never employing unnecessary force or
violence, and never accepting gratuities.
CITED STATUTORY PROVISIONS
ORS 153.120 Citation
requirements; delivery of summons to person cited; delivery of other parts of
(2) The authorized person issuing a citation under ORS 153.110 shall cause:
(a) The summons to be delivered to
the person cited; and
(b) The complaint and abstract of court record to be delivered to the court.
This case involves the discipline of two Marion County Sheriff's
Deputies, James May and Terry Sheets ("Grievants"), over the voiding
of a traffic ticket originally issued by May to a third Sheriff's employee,
Sergeant Kathy Fisher. The facts
are not in dispute.
Fisher was on her way to work at the jail when May stopped her for
speeding. Fisher expressed great
displeasure at receiving the ticket. At
the time, May was unaware of Fisher's affiliation with the Sheriff's Office.
Later that day, May reported to Sergeant Larry Feller that a citizen
complaint might ensue over the incident. Feller
recognized Fisher's name, informed May that she was a fellow officer, and
reassured him that it was all right to ticket fellow officers.
Feller placed the ticket in the report box to be taken to the downtown
office for processing and routing into the court system.
There was no discussion of whether the ticket should be voided or how
that might be accomplished.
At the jail that day, Fisher told Sheets about the ticket and discussed a
recent incident in which May issued only a verbal warning to a male Sergeant.
Fisher asked if anything could be done once a ticket was issued, and
Sheets said he would check into it. Sheets
met with May, asked whether May knew that Fisher was a Sergeant when he issued
the ticket, and discussed the treatment afforded to the male Sergeant.
May commented that he would not have issued the ticket if he had known
that Fisher was a Sergeant. Sheets
asked May, as a favor, to check and see if the ticket could be dismissed.
The two agreed that if the ticket was downtown, May could do nothing, but
if it was still in the report box it could be "unissued."
May found the ticket still in the report box, removed it, and tore it up.
He called Sheets and told him he believed Fisher had learned her lesson
and that she could destroy her copy of the ticket. Sheets retrieved Fisher's copy and tore it up.
Later that day, May discussed his treatment of Fisher's ticket with a
fellow officer in the presence of a Sergeant Watts.
Watts asked May to document his actions and notified Feller of what he
had learned. That same day, Sheets
discussed the incident with a Sergeant Taylor, with whom he discusses his work.
He testified that Taylor told him he probably should not have done what
he did, but did not cite a rule against it.
May, Sheets, and Fisher prepared separate reports of their involvement in
the ticket. At Feller's direction, May issued a substitute ticket to
The Sheriff suspended Fisher for three days, Sheets for five days, and
May for two days. The discipline
issued to Fisher is not at issue here. May
had been on the force less than a year and was still on probation at the time of
the events in question; Sheets had 18 years' service.
of General Order 4-51-285
General Order 4-51-285 has been in effect since February 1985.
Gary Jones, who supervises the Records Section of the Sheriff's Office,
testified that he has not seen tickets coming into his office marked
"void." Feller testified
that voided tickets stay within the Sheriff's Office rather than going to court.
He does not automatically send every ticket to court, and he is unaware
of any statute requiring all tickets to go to court.
The only discipline administered for voiding a ticket was in 1972, under
a predecessor policy. The officer
involved in the 1972 incident was discharged for removing and destroying a
ticket issued by another officer because he recognized the defendant's name as
that of a friend.
James Radakavich testified by telephone from a U.S. Army base.
He testified that he issued a ticket in the summer of 1989 while working
as a Cadet for the Sheriff's Office. Lieutenant
Larry Allen contacted him and brought him the ticket and a citizen complaint
over the ticket. The two discussed
whether the speed limit indicated on the ticket was correct.
Radakavich offered to re-issue the ticket, but Allen said it was
unnecessary and that he would take care of it.
Radakavich was never called to go to court on the ticket.
Allen testified he contacted Radakavich over a complaint that he and
another cadet had set up a speed trap. Allen
concluded there was nothing wrong with the ticket, but the park involved was not
one in which those cadets were to patrol. He
denied bringing the ticket with him when he spoke to Radakavich or destroying
it, and testified he had no intention of preventing the ticket from being
processed. The file copy of the
ticket in question cannot be located.
On another occasion, Allen contacted a cadet about a ticket issued for
lack of proof of insurance. The
cadet had told the citizen the ticket would be torn up if he came in with proof
of insurance. Allen testified that
he informed the citizen and the cadet that the Sheriff's Office did not tear up
tickets. After verifying that the
citizen had insurance, Allen submitted a memorandum to the Court Administrator
requesting that "this citation not be processed through the court."
Deputy Sheriff Dennis Johnson testified he vaguely recalled that the
Department had a policy regarding voiding tickets, but the policy has not been
followed in practice. He has
retrieved and destroyed tickets without going through the official procedure,
and he has seen other officers do the same.
He testified that Radakavich talked to him about the 1989 ticket in which
Allen became involved, and he did not find Allen's actions surprising.
Shop Steward Larry Seeley testified that he was aware that the procedure
for voiding tickets was to mark the ticket "void" and place it in the
report box. That policy has been
followed to varying degrees. He has
sometimes thrown away tickets that were damaged or erroneous, and at other times
has voided them, and he is aware that other officers have thrown out tickets.
He testified that the Department has evidenced no great concern over what
was done with tickets once they were no longer needed.
Knowledge of the Policy Regarding Voiding of Tickets
Sheets is familiar with General Order 4-51-285, but testified that
Sheriff's Deputies generally did not follow it.
In this regard, he noted there was no accountability for ticket books, he
often received ticket books with missing tickets, and he often observed
torn-up tickets in wastebaskets in the Sheriff's Office. He testified that, before this incident, his understanding
was that once a ticket was downtown or in court, an officer who wished to void
it would have to explain to the court why it was issued in error.
Before a ticket went downtown, he believed an officer could void a ticket
by destroying all copies. He
testified that he has used this method of voiding tickets in the past where he
concluded that the person had learned a lesson and would not repeat the offense.
He was taught not to ticket fellow officers, as a professional courtesy.
May testified that he was unaware of General Order 4-51-285 or any rule
prohibiting the voiding of tickets after issuance.
He has never signed off on a copy of General Order 4-51-285 to indicate
having read it. He has seen
filled-out tickets in trash cans, some of which had been marked
"void." He has seen other
officers pull tickets out of the report box, but did not observe what they did
with those tickets; he acknowledged that one reason to do so was to mark the
location of the incident on the ticket. He
believed he retained the discretion to void a ticket up to the point where it
went downtown, if he felt the offender had learned a lesson and would not repeat
the violation. At the police
academy, he was trained in the procedure for filling out tickets and in traffic
laws, but not in what to do if a ticket was issued in error.
After police academy, he received training from three field training
officers (FTO's). He testified that
one FTO, Daniel Witt, told him it was not a good idea to cite fellow officers
because he had to work with them. Another
FTO, Mark Keagle, told him a ticket could be voided by tearing up all the
Witt testified that he trained May in traffic stops. He testified that he generally instructed recruits that once
a ticket was issued, it was issued, and that an officer could not void a
mistaken ticket. In his experience,
not all officers follow the procedure of routing all tickets through the court.
He has seen voided tickets ripped up where, for example, the ticket was
voided before service on the citizen and replaced by a corrected ticket.
He may have informally discussed the inadvisability of issuing a ticket
to fellow officers because of the need to work together.
Keagle testified that he trained May in filling out tickets. He testified that a ticket could be voided where it contained
an error or where the officer reconsidered and decided a verbal warning would
have been sufficient. His understanding
of the procedure for voiding tickets was that the issuing officer was to
retrieve the defendant's copy and shred or tear up all copies of the ticket.
He has never had a sergeant sign a voided ticket or route it downtown.
He testified that if he discussed a ticket with a sergeant and the
sergeant approved the ticket and placed it in the box for routing downtown, he
would not take the ticket out and tear it up.
He was unfamiliar with General Order 4-51-285. He testified that paragraph 4 of that policy is not
complied with, and there is no way to account for destroyed tickets since ticket
books are not accounted for.
Deputy Sheriff Vincent Wan testified that he trained May in issuing
tickets and discussed how they were processed, but did not discuss the
procedure for voiding tickets. His
understanding of the procedure for voiding tickets is consistent with General
Feller testified that he did not doubt that May was unaware of the policy
regarding voiding tickets, but he suspended May because he had violated the
policy. He did not check with May's
FTO's to determine whether May had received training in General Order 4-51-285.
He testified that May was doing excellent work on probation.
In sustaining the discipline, Captain Ron Freshour found no facts to
contradict the claim of ignorance of the policy.
His written decision commented that the conduct violated the policy; it
could be interpreted as a Class A Misdemeanor and would bring disgrace on the
Sheriff and the Sheriff's Office if it became public; and the failure to set and
enforce high standards for employees would invite outsiders to come in and
POSITION OF SHERIFF
The discipline imposed on May should be reduced from suspension without
pay to a written reprimand. The
discipline for Sheets was correct and should be sustained.
General Order 4-51-285 was not uniformly followed in the Sheriff's
office, and May had no provable knowledge of this General Order.
May was never told or trained on tearing up valid tickets.
However, May claimed that he "thought" Fisher had learned her
lesson, and he was influenced by Sheets in deciding to tear up the ticket.
May's conduct was and is wrong, and lacks a great deal of common sense.
It is reasonable to believe that if Fisher was a civilian violator, the
ticket would not have been torn up.
All police officers are expected to act in the public interest, and their
conduct shall not be a discredit in the performance of county functions.
Tearing up a valid ticket, albeit for professional courtesy, is not
acceptable or in the public interest, and is classic cronyism.
The public would not understand this conduct.
The public trust has been violated.
May responded inappropriately and did not consider the impact of his
actions on the Sheriff's Office, other officers, or the public in general. Officer discretion does not allow an officer to act blindly
upon the request of a senior Deputy. May
was on probation and was influenced by the request of a senior Deputy.
He wanted to please and follow "accepted practice" of
professional courtesy. In his
attempt to please others, he violated County Personnel Rules and the Police
Officer Code of Ethics.
Sheets asked another deputy to do "a favor" for an
acquaintance, although he had no reason to believe the ticket was invalid or
wrongly issued. It cannot be
acceptable to destroy tickets for citizens or police officers.
As an 18-year veteran, there should be no question in Sheets' mind that
his request was inappropriate and a violation of County Personnel Rules and the
Code of Conduct. Tickets which have
been torn up or destroyed in the past were incorrectly filled out, invalid, or
dismissed for a variety of lawful reasons.
None involved personal friendship, professional courtesy, or personal
gain. All of the examples involved
arguably justifiable reasons for destroying the tickets.
It is admirable and consistent with Sheets' employment that he did not
deny his conduct. The conduct is
wrong and in violation of statute. Once
the ticket is issued and the driver given the summons, the officer has no choice
and no discretion; the ticket must be routed to court. Sheets knew better. This
was a stupid, unthinking act and request of a younger officer.
While the request was not motivated by evil intent, such conduct cannot
be condoned. A written reprimand is
not adequate discipline for the admitted conduct.
POSITION OF THE UNION
No discipline was warranted in this case.
All discipline of May and Sheets should be removed from their personnel
files. They should be restored the
time for which they were suspended without pay and be made whole in every
respect. The Arbitrator should
retain jurisdiction over the remedy in this case.
Both Grievants freely admitted violating the policy. The Sheriff's investigators concluded that neither was
aware of the policy. Principles of
progressive discipline do not allow discipline for violation of a rule of which
the employee is unaware. The
investigation failed to inquire into possible justification for the employees'
conduct. This was not such an
obvious offense as to obviate the need for notice.
Both voiding of tickets and giving professional courtesy to fellow
officers were common practices.
The conduct did not violate state law or the Criminal Justice Code of
Ethics. ORS 153.120 does not
prohibit an officer from retrieving a summons issued in error, and past practice
has been to retrieve such erroneous summonses rather than file the complaint in
court. Even the Sheriff's own
policy on voiding of tickets does not require filing the complaint with the
court. Paragraph 3 of the policy
shows that the Sheriff has a practice of not filing voided tickets with the
court unless the Sheriff is unable to retrieve the ticket.
In such a case, it is reasonable to send the erroneous ticket to the
court, as the defendant may appear in response to the ticket. If the statute were interpreted as suggested by the Sheriff,
then its own policy violates the statute. The
Sheriff did not call a District Attorney to testify that Grievants' actions
violated State law. No evidence
exists that either was prosecuted for this conduct or that the Sheriff referred
this case to the District Attorney's office.
The Sheriff's attempt to imply that a violation of a criminal statute has
occurred should be rejected. The
Sheriff has failed to explain how the conduct in this case violated the Code of
Ethics. Virtually all police
officers give immunity to fellow officers, and no statute was violated in
voiding the ticket. Many deputies
were unaware of the policy regarding the voiding of tickets, and it was not
The Sheriff could reasonably put General Order 4-51-285 in place and
require its employees to follow it. Every
witness who testified regarding that policy acknowledged that it was not being
followed. If the Sheriff wishes to
adhere to that policy, it should put employees on notice of that fact.
The Sheriff will then be able to enforce it in the future.
The investigation was not conducted fairly and objectively.
Neither Grievant was interviewed to ascertain the reasons they did not
adhere to the policy. The
Department was more concerned with possible adverse publicity over the matter
than it was with whether Grievants knowingly violated a policy.
The Sheriff was aware of Grievants' lack of knowledge of their
wrongdoing, and thus was aware that they were not guilty as charged.
The Sheriff has not applied its policy evenhandedly. The policy was not followed, and a number of witnesses,
including a FTO, were unaware that the rule existed.
Those who were vaguely aware of the rule did not feel that ripping up a
ticket violated the rule.
The degree of discipline imposed was not reasonably related to the
seriousness of the offense or the record of the employees.
May was new and had received no training on the policy.
No evidence exists that he has been otherwise disciplined or that his
performance has been less than satisfactory.
The Sheriff could have terminated this probationary employee, but chose
not to do so. Given his record,
there is no justification for any discipline of May.
Sheets was an 18-year veteran and could be held to higher knowledge of
rules and standards of the Sheriff under appropriate circumstances. However, it was undisputed that the tearing up of tickets and
giving professional courtesy occurs regularly.
His belief that the conduct did not violate any Sheriff's Office rule was
the uncontradicted state of the evidence in this case.
No evidence exists that he had ever been disciplined.
The Arbitrator's authority is limited to determining whether just cause
existed for this discipline. Statutory
interpretation is the province of the courts, and requires analysis of
legislative history and prior decisions. The
Arbitrator will not attempt to determine whether ORS 153.120 prohibited
Grievants' conduct or whether the policy enunciated in General Order 4-51-285 is
consistent with the requirements of that statute.
Any determination as to whether Grievants' conduct violated public policy
falls within the expertise of prosecutory and judicial authorities.
The Agreement requires that any discipline must be for just cause.
Just cause requires, inter alia, notice of the standards of
conduct in the workplace. If the particular employer has tolerated conduct which is
generally disfavored in the industry, it is the actual standards of that
workplace that must be applied, even if the "industry standard" might
be considered a more desirable one. The
distinguishing factors between permissible and impermissible conduct must be
consistent and predictable to allow employees to conform their behavior to the
rules. Before employees can be held
to a new or newly-enforced standard of conduct, they must receive notice of the
The Sheriff has a valid interest in avoiding any appearance of cronyism
or suggestion that an officer may have "fixed" a ticket. To further this interest, the Sheriff reasonably could
promulgate and enforce a uniform policy governing the voiding of tickets or the
limits of "professional courtesy" for fellow officers.
General Order 4-51-285 recognizes that it is sometimes appropriate to
void a ticket after issuance. The
examples raised at the hearing demonstrate some of the valid reasons that may
exist for voiding tickets beyond the narrow confines of that policy. Even in the absence of a specific policy, police officers
know, or should know, that it is improper to void tickets for reasons unrelated
to the proper performance of their duties.
The determination of which reasons are related to the proper performance
of their duties may itself depend on the policies and practices of the law
The only written policy regarding the voiding of tickets is General Order
4-51-286, which specifies the voiding procedure when a ticket "was issued
in error." Salutary though
this policy may be on paper, it has not been applied in practice.
Officers commonly void citizens' tickets for reasons other than
"error," such as the officer's conclusion that a verbal warning would
have been sufficient to deter a repeat of the violation.
Officers also routinely void tickets by destroying them rather than
routing them through the court system. Therefore,
neither the decision to void Fisher's ticket nor the means used to do so was
novel in this workplace.
The Sheriff recognizes that May had no notice of or training in General
Order 4-51-285, and therefore that the penalty imposed on him was too severe.
Unlike May, Sheets had notice of General Order 4-51-285, but he also knew
that only some officers adhered to it. Sheets
had no notice that the Sheriff intended to enforce the policy uniformly, and his
suspension also cannot stand.
The voiding of the ticket did not evince cronyism beyond that implicit in
professional courtesy. It is
irrelevant whether officers should extend professional courtesy to one another,
or whether the public would approve of such a practice.
Desirable or not, the practice was permitted in this workplace, and May
was trained to follow it. Fisher
was aware that May had extended this courtesy to a male officer, and
questioned his motives in denying it to her.
Sheets, in turn, mentioned the discrepancy in treatment to May.
A concern over evenhanded enforcement as between male and female
officers was arguably a legitimate reason for voiding a ticket under the
prevailing standards of conduct.
Sheets phrased his inquiry into the fate of Fisher's ticket in terms of
doing him "a favor." This
phrasing is somewhat ambiguous, but one conventionally used where the speaker
seeks a common courtesy rather than a gratuity.
The simple turn of a phrase is a slender thread upon which to base
discipline, particularly where, as here, the words used are susceptible to
either a proper or improper meaning. May
had acquired further information about this particular traffic offender after
issuing the ticket. In this
context, the suggestion that he reconsider the ticket in light of that new
information was at least arguably proper. Accordingly,
the Sheriff has not established that Sheets requested or May granted a gratuity.
For all of the above reasons, no cause existed for discipline.
There was not just cause for the discipline of James May and Terry
As a remedy, the Sheriff shall revoke the suspensions of James May and
Terry Sheets, expunge all reference thereto from their personnel files, and make
them whole for all losses resulting from their suspensions, including wages
The Arbitrator retains jurisdiction over any dispute arising from the
remedy portion of this Award.
DATED: December 8, 1991
LUELLA E. NELSON - Arbitrator