Title: Washington State Patrol and
Washington State Patrol Troopers Association
BEFORE THE DISCIPLINARY REVIEW BOARD
of the Board
Trooper James G. O'Neill
Trooper Elmer H. Schick
FOR THE ASSOCIATION:
Eric A. Mentzer
The Law Offices of
P.O. Box 40100
Portland, OR 97268
The Washington State Patrol (the employer or Patrol) and the Washington
State Patrol Troopers Association (the Association) are parties to a
collective bargaining agreement that sets forth the terms and conditions of
employment of bargaining unit employees, including discipline and discharge.
The grievant, Lane W. Jackstadt, was a member of the bargaining unit
and performed duties as a trooper for the employer.
On January 10, 1995, the grievant was discharged by the employer
because of his conduct related to an examination that was given on February
10, 1993. The discharge was
appealed pursuant to the collective bargaining agreement.
A hearing before the disciplinary review board was held from March 13
through 17, 1995. Post-hearing
briefs were filed on April 6, 1995. Members
of the board met on May 12, 1995 to deliberate and cast votes.
After deliberations were completed, the following votes were cast:
Captains Leichner and Thoet voted to uphold the discharge; Troopers
O'Neill and Schick, voted to reverse the discharge and impose a 30-day
suspension without pay. The
chairman of the board, as had been previously agreed, abstained from voting.
The hearing was deemed closed as of May 12, 1995.
The parties agreed that the issue to be decided is whether the
grievant, Lane W. Jackstadt, was discharged for cause and, if he was not, what
is the proper remedy.
CONTRACT PROVISIONS, MEMORANDUM OF AGREEMENT,
RULES, AND STIPULATION
The following provisions of the parties' collective bargaining
agreement and the employer's rules of conduct are relevant to the issue in
ARTICLE 15 -
DISCIPLINE AND DISCHARGE
Disciplinary actions, including discharge, shall be for cause only.
. . .
Disciplinary Review Board
employee who receives a suspension, demotion, or discharge shall be subject to
the Complaint and Disciplinary procedures and the Trial Board's procedures or,
if the employee elects, to the Disciplinary Review Board.
Any employee may elect to appeal to the Disciplinary Review Board (DRB)
the following decision of the Chief: suspension,
demotion or discharge.
. . .
Should the employee appeal to the Disciplinary Review Board the
following shall control:
. . . d.
Record: . . . Charges shall be proven by a preponderance of the
. . . f.
Work Record: The work record of the employee may be admitted only to
assist the Board in fixing sanctions. . .
Other Discipline: Discipline
in similar cases shall be relevant to the fixing of sanctions.
. . .
Finality: The decision of
the Board, which shall be rendered in writing no later than thirty (30) days
after the close of the hearing, shall be final and binding on the parties,
subject to reversal only if the Board has made an error of law under RCW
. . .
Jurisdiction: The Board
shall not have the authority to interpret violations of constitutional or
. . .
Agreement dated April 30, 1994.
. . .
The parties are
entering into this agreement for the purpose of clarifying the procedure for
employee input regarding proposed discipline.
agree to the following:
Upon completion of a case, the disciplinary packet shall be evaluated
by the Commander. The Commander
shall determine whether or not the charges are sustained.
After consultation with the Office of Professional Standards regarding
past sanctions for similar violations, the Commander will initially determine
the degree of discipline to impose.
. . .
Conduct, Chapter 7.00
. . .
Care and Use of Equipment or Property
. . .
Department equipment shall not be used for other than assigned purposes
without prior permission of the appropriate commander concerned.
not engage in conduct which:
Impedes the ability of the Washington State Patrol to effectively
fulfill its responsibilities.
Causes a lessening of public confidence in the ability of the
department to perform its function.
Causes and adverse effect on the discipline or efficiency of the
Impairs their ability to perform their job.
Constitutes a conflict of interest as prohibited by law or department
Cheating on Examinations
not cheat or tamper in any manner with an official examination either
conducted or sponsored by the department by obtaining, furnishing, accepting
or attempting to obtain, furnish or accept answers or questions to such
employees shall not copy, photograph, or otherwise remove examination
contents; nor shall they use any misrepresentation or dishonest method while
preparing, administering or participating in such examinations.
agree to the following facts:
During the 54th Washington State Patrol Trooper Cadet Basic Training
Academy, two trooper cadets were caught cheating on an examination.
The two cadets that were caught cheating were not terminated from the
Washington State Patrol.
The two cadets were commissioned as full RCW Troopers at the conclusion
of the 54th Basic Training Academy and were tenured at the conclusion of their
These two individuals continue employment with the Washington State
Patrol as commissioned members as of March 13, 1995.
In addition, one of these troopers still holds the rank of RCW Trooper
and the other currently holds the rank of Captain.
STATEMENT OF FACTS
Lane Jackstadt was hired by the employer in 1983.
He completed basic academy training and served as a trooper until the
time of his discharge in 1995. He
received average and above-average performance evaluations during his tenure.
He had been disciplined five times for minor infractions of policy.
Prior to 1993 Jackstadt had taken one sergeants examination.
Not long before the 1993 examination, his patrol car was equipped with
a video camera and sound system that allowed him to use a lapel microphone to
record remote sound onto the tape equipment located in the patrol car.
Jackstadt mentioned to one of his fellow troopers and friend, Trooper
Sutton, that he had the capability to record the upcoming sergeants
On the day of the 1993 examination, Troopers Jackstadt and McAuliffe
rode together in Jackstadt's patrol car to the site of the examination.
During the ride Jackstadt told McAuliffe of his plans to record the
examination and how he planned to accomplish it.
When they arrived at the examination site, Jackstadt placed a video
tape in the recorder and then went inside and sat near McAuliffe.
During the course of the examination Jackstadt read aloud the questions
and answers into his lapel microphone. The
sound was recorded on the tape in the patrol car.
After the examination was over, Jackstadt and McAuliffe went to a
restaurant and talked about the examination.
McAuliffe told Jackstadt to let him know how the tape came out.
Jackstadt took the tape home and played it. He claimed he could not make out what it said and he later
gave it to McAuliffe.
During the period of time after the examination, Trooper McAuliffe told
Troopers Luce and Johnson what Jackstadt had done during the examination.
Several months after that, Trooper Luce told Trooper Adams the story.
In the meantime, Jackstadt placed the tape he had made of the
examination questions and answers in McAuliffe's mail box at work.
McAuliffe took the tape home and played parts of it.
He claimed he had difficulty understanding what Jackstadt was saying,
so he placed the tape on a shelf and did not attempt to listen to it again.
Allegations were made in August of 1994 that during the previous month
Trooper Jackstadt stopped a young couple for speeding.
They explained to him that they were late for an abortion appointment
for the woman. Jackstadt detained
them for about 45 minutes trying to talk them out of the abortion.
He allegedly engaged in several tactics in an effort to dissuade them
from going through with their plans. Ultimately,
the allegations became public knowledge and the Washington State Patrol
received complaints from several sources, including influential state
legislators, about Trooper Jackstadt's conduct toward the young man and woman.
News and criticism of the event was broadcast nationwide.
It was in late September 1994 that Trooper Luce told Trooper Adams
about Jackstadt's recording of the sergeants examination and commented that
the recording of the examination, coupled with the abortion issue, would come
down hard on Jackstadt. The
following Monday, after he received the information from Luce, Adams informed
Lieutenant Smith, in a hypothetical fashion, that there had been a recording
of the 1993 sergeants examination.
Lieutenant Smith told Adams' story to Captain Batiste, who wanted to
pursue the matter. Eventually, in early October, Batiste met with Adams, Luce,
and McAuliffe. McAuliffe told
Batiste the story of how he obtained the tape and the events concerning him
and Jackstadt on the day of the examination.
Captain Batiste said there was no place in the Washington State patrol
for anyone who would do something like that.
Batiste said he would support Trooper McAuliffe.
McAuliffe was later terminated for his involvement in the incident.
Thereafter, Captain Batiste instigated an investigation into the
incident. During the
investigation Jackstadt was candid--he said he used the equipment to record
the examination and he knew it was wrong.
Sergeant Porter, who assisted in the investigation, played the tape and
found it to be clear and easy to understand, although he did take it to a
speech and communications science professor at the University of Washington to
have certain parts that Porter could not understand enhanced on specialized
On December 3, 1994 Captain Batiste decided to terminate Trooper
Jackstadt. On December 7, 1994 he
met with Captain King and Lieutenant Lopez of the Office of Professional
Standards and told them he had reviewed the case in its entirety and discussed
sanctions. He talked to King and
Lopez about a 1978 case where two troopers who were caught cheating on a
sergeants examination were terminated. They did not talk about cheating on forced-choice
evaluations. Batiste believed the
forced-choice system had nothing to do with Jackstadt's case.
He had no information on cheating on forced-choice evaluations at the
time he decided to terminate Jackstadt. He
believed that cheating at the academy was not as serious as cheating by
troopers on sergeants examinations. He
testified he would not terminate an employee who was caught manipulating the
Captain Batiste first met with Trooper Jackstadt on December 13, 1994.
He gave Jackstadt a copy of the investigative report and a copy of the
video tape. He also let Jackstadt
know what the pending sanction was.
On December 19, 1994, and again on December 27, 1994, Batiste met with
Trooper Jackstadt, Trooper Soper, who was the Association representative, and
Jackstadt's attorneys to allow them to present mitigating facts about the
case. Jackstadt said he did not
believe he was cheating; Batiste said it was.
Jackstadt also tried to show that the penalty was too severe.
He told Batiste that troopers memorized examinations and shared them
with other troopers as study aids for future examinations. He informed Batiste about cheating on the forced-choice
evaluation system, which made up fifty percent of the overall sergeants
examination score. He informed
Batiste of cheating at the academy that had gone unpunished. After the December 19, 1994 meeting, Batiste contacted the
academy and was told all who had been caught cheating since 1978 had been
At the conclusion of the December 27th meeting, Captain Batiste told
Jackstadt and his representatives they had not presented anything to change
his mind. He then handed
Jackstadt a notice-of-disciplinary-charges paper, which had been typed,
signed, and notarized earlier that day. If
Jackstadt had presented mitigating facts, Batiste would not have given him the
papers; instead, he would have ordered a further investigation. The
charges against Trooper Jackstadt, and for which he was ultimately terminated,
were listed as: (1) cheating on examination, (2) unbecoming conduct, and (3)
use of equipment.
When Trooper Jackstadt recorded the 1993 sergeants examination, his
objective was to get the situational questions so he could understand the
Patrol's philosophy and thereby improve his chances for future examinations.
He did not have a chance to use the material for his gain--to get a
higher score on the examination. He
believed that manipulating the forced-choice evaluation system, which resulted
in actual higher scores for certain troopers, was cheating and it gave them a
better advantage than he would have had.
They did in fact benefit from the cheating; he did not.
The forced-choice evaluation system used by the Patrol is one part,
which counts fifty percent, of the overall examination process for promotion
to sergeant. The actual written
examination, which Trooper Jackstadt illegally recorded, is made up of 100
questions; 50 are referenced to text books and 50 are non-referenced or
situational. The forced-choice
system requires that a sergeant evaluate his troopers four times over a
two-year period. Lieutenants are
supposed to review the evaluation of troopers under their command.
The evaluation is made up of a series of four statements.
Evaluators are supposed to pick the two statements under each of 20
separate categories that best describe the trooper being evaluated.
Of the four choices, two are weighted and count one point each, the
other two count zero. The best
possible score is 50, with 42 being the average.
A trooper's forced-choice scores are averaged and that number is added
to the score on the written examination to determine his standing on the
Although it was against policy, it was clear that some sergeants,
lieutenants, and troopers were successfully manipulating the forced-choice
evaluation system, according to Dr. Cederblom, special deputy for the Patrol
who develops examinations and directs their administration.
Sergeant Kreis was investigated and was disciplined for manipulating
the system by using the same statements, which he had previously sent to
Olympia for grading, for subsequent evaluations of several of his employees in
an attempt to get his troopers higher scores.
He received a five-day suspension.
Trooper Adams appealed his forced-choice evaluation in 1992 because he
did not receive the same instructions and assistance in completing the
evaluation as did another trooper in his detachment, Trooper Jones.
Sergeant Hunter had evaluated Jones in the usual manner and Jones
received a 39 score. Jones kept
the evaluation selections and obtained advice from Lieutenant O'Laughlin on
how to improve his score by selecting the statements that were weighted.
The lieutenant went over the set of statements with Jones.
Jones then went back to Sergeant Hunter and asked to have some of the
statements on his evaluation changed. Hunter
acquiesced, and the evaluation was forwarded to Olympia for grading where it
received a score in excess of 48. The
appeal committee reviewed the matter, determined that the 48-plus score was
not obtained objectively and ordered a re-evaluation of Jones.
The re-evaluation resulted in a score of 41 plus or minus.
Neither Lieutenant O'Laughlin nor Trooper Jones was disciplined.
Some troopers have transferred to other detachments, where the sergeant
knew how to manipulate the forced-choice evaluation system, so they would get
a higher score.
In the late 1970s, Troopers Loomis and Goldman, both of whom had taken
the current sergeants examination, were selected by the Patrol to assist in
grading the examinations. During
the process, both were caught changing answers on their own answer sheets to
get a higher score. Both troopers
The written part of the examination process is made up of referenced
questions that can be researched in text books and non-referenced, situational
questions that cannot be researched. Subject
matter experts are selected from among the Patrol's officers to develop
questions for the non-referenced part of the examination and to assist in
developing weighted answers. The
experts are advised not to reveal their questions to study groups, which they
sometimes assist in preparation for the sergeants examination.
Lieutenant Boyer helped troopers despite this advice.
On any examination, 33 percent of the questions are questions that have
been used from one examination to another.
The reuse of questions is common knowledge among troopers and they have
devised ways to take advantage of it. Some
of the troopers have gotten together before an examination and planned ways to
memorize blocks of questions so that as many of the total questions as their
collective memory would allow were written down immediately after the
examination. The aggregate was then typed into a set of questions that is
passed around to selected prospective participants for preparation for the
next examination. The practice is
accepted by the Patrol.
The stipulation noted earlier shows that two cadets were caught
cheating during the 54th Basic Training Academy, but they were not terminated.
Dr. Cederblom was of the opinion that if a trooper had a prior
examination and memorized it, he would have a significant advantage over
others. He testified that
examinees do not do better the second time on questions that are repeated from
previous examination; therefore, those who memorize questions and later write
them down do not create a problem. He
stated that memorizing a few questions was not the same as recording all of
them because people cannot memorize enough to make a significant difference.
By recording all the questions, one could research the referenced
questions; however, the non-referenced questions would involve a certain
amount of guess work.
As to manipulating the forced-choice system, Dr. Cederblom testified he
could not say whether it amounted to cheating.
He said the difference between manipulating the forced-choice system
and recording the examination was that by recording it, one could find the
answers, memorize them, and get a better score on the next examination.
With the forced-choice, one had no guarantee one would get a better
score because there was no place to get the correct answers.
Later, during cross examination, Dr. Cederblom testified that
supervisors had in fact manipulated the forced-choice system by keeping copies
of evaluations they had sent to Olympia that received high scores.
They then used them to evaluate subordinates later.
Dr. Cederblom was of the opinion that what Trooper Jackstadt did was
different than what other troopers did when they conspired to memorize
questions while in the examination--take them out of the test site, write them
down, and use them for future study. He
believed there are degrees of difference between the two; one produces an
exact replica, the other is subject to human error and memory.
POSITION OF THE
The Patrol contends that Trooper Jackstadt was terminated for cause
under the terms of the parties' collective bargaining agreement.
The Disciplinary Review Board's jurisdiction is limited to a
determination of whether the termination was for cause.
The employer goes on to argue that it complied with all procedural
requirements when it terminated Jackstadt.
He received a pre-termination hearing as required by Cleveland Board
of Education v. Loudermill, 470 U.S. 532 (1985).
He received due process.
One of the standards to determine whether Jackstadt was terminated for
cause is that set forth by the Washington Supreme Court in Baldwin v.
Sisters of Providence, 112 Wn. 2d 127, 139, 769 P.2d 298 (1989).
There the Court said a discharge for just cause is one which is not for
any arbitrary, capricious, or illegal reasons and which is based on facts (1)
supported by substantial evidence and (2) reasonably believed by the employer
to be true. The disciplinary
action against Trooper Jackstadt was carefully considered and reviewed before
it was imposed and there was no showing that the Patrol acted arbitrarily,
capriciously, or illegally. The
evidence before the Patrol was certain, no denial or defense was offered
during the investigation.
Although the employer maintains that this matter is not an arbitration,
it goes on to analyze the case under arbitration principles.
The employer notes that the Washington Supreme Court has not adopted
the arbitration standards the employer analyzes and the standards analyzed are
from private sector employment, not public sector employment.
The Patrol's regulations are published and each trooper is deemed to be
aware of them. They served to
give employees forewarning of possible disciplinary consequences.
The regulations are reasonably related to the orderly operation of the
Patrol. The Patrol can expect its employees not to attempt to gain an
unfair advantage against other employees.
As to whether the rule or regulation is related to the performance the
Patrol may expect of its employees, the Patrol argues this Board may not
properly consider the question. The
Board, pursuant to the contract, is not the forum to contest the wisdom or
efficacy of such regulations.
There is no question that Jackstadt actually violated the rule in
question. He admitted during the
investigation that he committed all of the acts of which he was accused.
The Patrol's investigation was conducted fairly and objectively.
Jackstadt brought forth no evidence to show the investigation was
There was substantial evidence of Jackstadt's guilt.
He denied nothing. All the
evidence obtained during the investigation supported the disciplinary action
against him. There was nothing to
indicate he did not cheat on the examination.
The Patrol applied its rules even-handedly and without discrimination.
Even though discrimination is a constitutional question and is not
properly before this Board, there was no discrimination.
The Patrol has always maintained that termination is the only
appropriate sanction in cases such as this.
The "forced-choice evaluation system" analogy must fail
because the regulations violated by Jackstadt pertained to examinations.
The forced-choice evaluation is not an examination. In the examination, employees are to furnish answers to
questions without cheating or otherwise obtaining an unfair advantage.
In the forced-choice evaluation system, it is the employee's supervisor
who determines the ultimate score of the employee.
Under Jackstadt's approach, he himself could determine whether to
improve his own score.
The analogy Jackstadt makes with his conduct and with the methods used
by troopers to memorize questions and later make notes of those questions also
fails. There is little the Patrol
can do to control the memories of employees who take the examination.
He seems to argue that anyone who remembers the examination after he
leaves the site is guilty of cheating. All
who testified agreed that what Jackstadt did was wrong or inappropriate.
They did not believe they were cheating when they used materials from
Materials that were developed from memorized questions were freely
shared among troopers. Jackstadt
kept his recording and shared it only with McAuliffe.
The inference is that Jackstadt knew his conduct was cheating and he
wanted to gain an unfair advantage over his fellow troopers.
The two instances in which cadets were caught cheating at the academy
and were not terminated are not analogous to cheating on a sergeants
examination. The academy cheating
happened a long time ago, before Jackstadt was commissioned.
In recent history, the Patrol has terminated all who have been caught
cheating on examinations at the academy.
Three such cadets in Jackstadt's class were terminated.
Cadet examinations are of little consequence compared to sergeants
examinations where troopers are competing against each other for a limited
number of promotional positions.
The employment record of Jackstadt is less than exemplary.
He was disciplined five times. There
is no sanction other than termination that is reasonably related to the
seriousness of his offense. He
committed an act that goes to the essence of what troopers are all
about--honesty and integrity. It
is imperative that their honesty be beyond reproach.
The actions of Jackstadt were serious, deliberate, and severe, and the
discipline must likewise be severe. Leniency
is the prerogative of the employer rather than the arbitrator, and the latter
is not suppose to substitute his judgment for that of the company unless there
is compelling evidence that the company abused its discretion, according to
Arbitrator Daugherty in Enterprise Wire Co. and Enterprise Independent
Union, 46 LA 359 (1966).
POSITION OF THE
The Association contends that Trooper Jackstadt was terminated without
just cause because of the manner in which the Patrol has administered the
examination process. It is a
basic principle of arbitration that where suspension or discharge is a
possible penalty for the violation of a rule, the rule must be reasonably and
consistently applied and enforced and widely disseminated.
Numerous troopers have removed materials from test sites to study for
future examinations. It is common
practice for study groups or individuals to agree to memorize blocks of
questions on the examination. Some
assign certain questions to each individual in the group to memorize.
At the conclusion of the examination each individual leaves the test
site and writes down the questions and answers.
As a result, a significant number of questions from examinations is
produced, duplicated, and passed around the state. The practice has never been discouraged.
Dr. Cederblom was not concerned about the practice because it did not
affect the validity of the examination.
Another example of removing promotional materials without authorization
is the practice of retaining materials from the forced-choice evaluation
process. There were reports that supervisors and troopers manipulated
the forced-choice system to obtain higher scores on the evaluations.
Part of this involved troopers retaining the forced-choice evaluation
sheets to try to figure out which were the most weighted phrases.
The practice was common knowledge around the Patrol.
In fact, the one case brought to light in the hearing involving Trooper
Jones and Lieutenant O'Laughlin was not even investigated.
Both the manipulation of the forced-choice process and the act of
removing materials from the examination show that the Patrol treated very
lightly or ignored evidence of what it now terms cheating in the promotional
process. This lackadaisical
approach resulted in numerous employees trying to find ways to manipulate the
system or gather examination material in an attempt to be promoted.
Trooper Jackstadt's termination is inconsistent with the notice
requirement under just cause standards. At
no time did the Patrol place any of its employees on notice that attempting to
record examination questions would be a basis for termination.
The reason for notice is so that employees and others are aware of the
probable consequences of their actions.
Just cause requires that discipline imposed be proportionate with that
imposed in similar cases in the past. The
memorandum of understanding between the parties memorializes that requirement.
Captain Batiste based his decision to terminate Trooper Jackstadt
solely on the Loomis and Goldman case, which is distinguishable from this
case. Loomis and Goldman actually
changed answers on their answer sheets. If
unchecked, it would have resulted in a higher promotional score.
Trooper Jackstadt was charged with removing material from the test
site, which did not result in a higher score for him.
Jackstadt did not use the material, and even if he had, it is unlikely
it would have resulted in a higher test score, according to Dr. Cederblom.
Captain Batiste ignored other evidence that was presented to him during
the per-termination hearing. He
felt it was not relevant. He did
not check with the Office of Professional Standards until after Trooper
Jackstadt was terminated.
Other instances of cheating or examination manipulation were: (1)
cheating at the academy where the individuals were not terminated; (2)
troopers memorizing questions and pooling their memorized answers for future
use in examinations; and (3) the manipulation of the forced-choice evaluation
system by Lieutenant O'Laughlin and a trooper which resulted in no discipline.
The cheating and manipulation were well known throughout the Patrol.
As Dr. Cederblom testified, those who attempted to manipulate the
forced-choice system might not know if they were selecting the highest
weighted answers. The same is
true for an individual who obtains questions on the sergeants examination--it
does not aid one in increasing his score without knowing which answerers are
correct. Dr. Cederblom is the
only one in the Patrol who knows which are the most correct answers.
While Trooper Jackstadt did remove material from the test site, he did
not take any further action that resulted in damage to the overall testing
process. He only gave the tape to
one other trooper. Both stated they could not use the tape and neither gave it
to anyone else to use. Neither
used the material to study for the next sergeants examination. Trooper Jackstadt's conduct was less compromising to the
overall testing process than that of other troopers who cheated on the
forced-choice portion of the process.
The penalty imposed on Trooper Jackstadt discriminated against him.
Discrimination can mean that management has it in for a particular
employee or that there is a lack of reasonable uniformity in meting out
punishment for a particular offense. This
case came to light after the abortion incident in which Trooper Jackstadt was
involved. The Patrol received
numerous press inquiries regarding the status of Jackstadt and members of the
legislature were aware of the incident.
Captain Batiste was determined to terminate Trooper Jackstadt without
regard to the evidence. On
October 3, 1994, at the meeting with Troopers Luce, Adams, and McAuliffe, he
said, "There is no place in the Patrol for someone like Trooper Jackstadt." Later on at the last pre-termination hearing, he showed he
had already signed the paperwork terminating Jackstadt before the hearing had
Captain Batiste utilized the sergeants examination case to rid the
Patrol of a political liability. He
pre-judged Jackstadt's case long before the investigation started, and long
before Jackstadt had an opportunity to provide information in his defense.
Had Captain Batiste fairly evaluated the conduct of Trooper Jackstadt,
he would have found it not distinguishable from the conduct of other troopers
during either the forced-choice evaluation process or during promotional
examinations, conduct which was not deemed by the Patrol to warrant
The employer had the burden of proving by a preponderance of the
evidence that it had cause to discharge the grievant.
Cause, good cause, or just cause is usually interpreted as placing upon
the employer the burden of proving facts deemed to warrant disciplinary action
and the propriety of the penalty imposed.
In the instant case there is no dispute that Trooper Jackstadt
committed the primary act with which he was charged:
a violation of Rule 7.00.410. He
readily admitted during the investigation that he recorded the questions and
answers to an official examination using employer-owned equipment.
The essential question raised in this case is whether the penalty of
discharge imposed by the employer is proper under the circumstances brought to
light during the evidentiary hearing. In
other words, was the penalty imposed on Trooper Jackstadt consistent with
penalties imposed on other employees for the same or similar offenses?
Employer rules and regulations must be consistently enforced, unless a
reasonable basis can be shown for a variation in imposing punishment. The evidence on the record in this case compels the
conclusion that the Patrol did not consistently enforce its rule against
cheating on examinations. The
penalty imposed on Trooper Jackstadt was altogether inconsistent with
penalties imposed on other employees for the same and for similar offenses.
The forced-choice evaluation system was used by the patrol as an
intrinsic part of the sergeants promotional examination process.
It counted 50 percent of the total score.
If a trooper had a low average forced-choice score, he stood no chance
of placing high enough on the promotion register to be promoted to sergeant.
While not termed an examination, the forced-choice evaluation was as
much a part of the examination system that led to promotion as the examination
It is reasonable to infer that the rule against cheating on
examinations was for the purpose of ensuring that all candidates enjoyed the
same advantage, that none unfairly gained an advantage.
Permitting the use of dishonestly obtained scores on the evaluation
part of the process would defeat the purpose of the rule as surely as
permitting the use of dishonestly obtained copies of a test to get a better
score. What Lieutenant O'Laughlin
and Trooper Jones did with the evaluation system resulted in a higher score
which improved Jones' standing on the promotional register.
What Jackstadt accomplished did not result in improvement.
No one was actually placed at an advantage by Jackstadt's conduct.
The Patrol argues that the examination tests a trooper's ability to
answer questions without cheating while the forced-choice evaluation system
allows his supervisor to determine his score; therefore, the two situations
are distinguishable. That
argument fails to acknowledge the fact that, as discussed above, both
processes are part of the whole examination that leads to a place on the
promotion register. Cheating on
one process produces the same result that cheating on the other process
produces. Moreover, there is
ample evidence on the record to show that troopers themselves influenced their
forced-choice evaluation scores, sometimes by untoward means as did Trooper
Jones. Lieutenant O'Laughlin gave
Jones inside information so that he could get a higher score.
The trooper-supervisor dichotomy argued by the Patrol is rather
meaningless when one considers the totality of the promotional process.
The other part of the Patrol's assertion regarding the forced-choice
system is that presumably if a supervisor manipulated the system, it would be
done only for those employees who deserved good scores.
Again, there is ample evidence on the record to show that sergeants
were frustrated with the system and allowed troopers to influence their own
scores. Furthermore, some supervisors kept previous good evaluations,
which was contrary to policy, to insure their employees received high scores.
Objectivity and fairness were of little concern, if at all.
Also, some detachments had the system figured out and it was such
common knowledge around the Patrol that some troopers transferred to those
detachments to get better scores. Clearly,
not all supervisors and troopers used the system dishonestly, but some did,
and they did so to the detriment of those who were not dishonest.
One would be remiss to ignore the fact that the forced-choice
evaluation score received by a trooper was of notable importance in the
promotional process. It was fully
as important, and very similar to, the question and answer test, and it cannot
be realistically segregated and removed from the overall examination process.
Sergeant Kreis attempted to manipulate the forced-choice system, was
caught, and received a five-day suspension from the Patrol.
The analogy made by the Association of Trooper Jackstadt's conduct and
that of groups of troopers conspiring to gain advantage by memorizing,
recording, and distributing examination questions and answers merits
consideration. As Dr. Cederblom
testified, there are degrees of differences between recording the examination,
as Jackstadt did, and memorizing questions, as numerous troopers had done.
The difference between the two, however, is one of degree, not of kind.
The result is the same: a
series of questions to be used to prepare for an examination.
That one approach produces better results than the other is noteworthy
only insofar as the Patrol has not made it a policy to enforce its rule
against groups of individuals who memorize, record, and distribute questions,
but it has decided to do so against the conduct engaged in by Trooper
Jackstadt. Even a cursory reading
of Rule 7.00.410 would persuade the reader that employees who memorize, later
record and distribute examination questions and answers are in violation of
the rule. They are as guilty of
obtaining and furnishing questions and answers and otherwise removing
examination contents as is Jackstadt. The
only difference is the Patrol chooses to ignore one method and punish the
other. While it would be
difficult to police, it would not be impossible to ensure compliance with the
spirit of the rule. The
examination could be changed completely each time, or those caught using
materials that had been obtained in violation of the rule could be
Dr. Cederblom testified that the important difference between
memorizing questions and tape recording them was that employees could not
memorize enough to make a significant difference.
That position rationalizes the Patrol's lack of concern with groups
that "otherwise remove examination contents" from the site.
It does not, however, distinguish between those acts and the act
committed by Trooper Jackstadt as far as a violation of the rule is concerned.
That those who have used the material produced from a pre-conceived
plan to memorize questions think they were not violating the rule is of no
consequence. They were as guilty
of a rule violation as was Trooper Jackstadt.
The fact that cheating at the academy went unpunished by termination
was stipulated to by the parties. As
the Parol argues, it happened a long time ago.
However, there is no evidence that the Patrol issued a notice at any
time since then stating that future cheating of any description would be
punished by termination of employment. The
evidence does show that the Patrol has discharged all cadets caught cheating
since that time, and it discharged two troopers who changed their answer
sheets. What those situations
serve to show, in conjunction with manipulation of the forced-choice system
and permitting the use of an array of questions obtained through
conspiratorial methods, is that the Patrol has not been consistent in it
imposition of penalties for the same or similar offenses.
Trooper Jackstadt's disciplinary record, although minor in nature, can
be considered an aggravating factor. Instead
of a five-day suspension like the penalty imposed on Sergeant Kreis, a 30-day
suspension is justified.
The grievance is sustained. The
Patrol did not have cause to discharge Trooper Jackstadt.
His discharge is hereby converted to
30-day suspension without pay. He
is to be reinstated to his former position with back pay and benefits.
Dated this _____ day of June 1995.
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028