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Title: Washington State Patrol and Washington State Patrol Troopers Association
Date: June 1995
Arbitrator: Jack H. Calhoun
Citation: 1995 NAC 107

BEFORE THE DISCIPLINARY REVIEW BOARD

 

WASHINGTON STATE PATROL,                                       )

                                                                                                )            OPINION

            and                                                                               )           AND

                                                                                                )            AWARD

WASHINGTON STATE PATROL                                         )          

TROOPERS ASSOCIATION.                                                )

 

--------------------------------

 

Members of the Board

Employer Appointments:                                               Association Appointments:

Captain Robert M. Leichner                                 Trooper James G. O'Neill

Captain Doug Thoet                                                    Trooper Elmer H. Schick

 

Neutral Chair

Jack H. Calhoun

 

--------------------------------

 

Hearing Held

March 13-17, 1995

Lacey, Washington

 

 

 

 

 

 

 

 

 

 

 

REPRESENTATION

 

 

FOR THE EMPLOYER:                                                   FOR THE ASSOCIATION:

 

Eric A. Mentzer                                                          Annette Sandberg

Assistant Attorney General                                  Will Aitchison

State of Washington                                                    The Law Offices of

P.O. Box 40100                                                             Will Aitchison

Olympia, WA  98504-0100                                       P.O. Box 83068

                                                                                                Portland, OR  97268

 


BACKGROUND

            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. 

ISSUE

            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.

RELEVANT CONTRACT PROVISIONS, MEMORANDUM OF AGREEMENT,

EMPLOYER 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 dispute:


ARTICLE 15 - DISCIPLINE AND DISCHARGE

A.            Disciplinary actions, including discharge, shall be for cause only.

. . .

C.            Disciplinary Review Board

            Any 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.

            1.            Any employee may elect to appeal to the Disciplinary Review Board (DRB) the following decision of the Chief:  suspension, demotion or discharge.

. . .

            3.            Should the employee appeal to the Disciplinary Review Board the following shall control:

. . . d.            Record: . . . Charges shall be proven by a preponderance of the evidence.

. . . f.    Work Record:  The work record of the employee may be admitted only to assist the Board in fixing sanctions. . .

            9.            Other Discipline:  Discipline in similar cases shall be relevant to the fixing of sanctions.

. . .

            j.            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 34.05.

. . .

            l.            Jurisdiction:  The Board shall not have the authority to interpret violations of constitutional or statutory provisions.

. . .

 

Memorandum of 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.

The parties agree to the following:

1.         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.

. . .

 

Rules of Conduct, Chapter 7.00

. . .

2.03.010  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.

 

7.00.030  Unbecoming Conduct

Employees shall not engage in conduct which:

1.            Impedes the ability of the Washington State Patrol to effectively fulfill its responsibilities.

2.            Causes a lessening of public confidence in the ability of the department to perform its function.

3.            Causes and adverse effect on the discipline or efficiency of the department.

4.            Impairs their ability to perform their job.

5.            Constitutes a conflict of interest as prohibited by law or department regulations.

 

7.00.410  Cheating on Examinations

Employees shall 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 examinations.  Furthermore, 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.

 

Stipulation

The parties agree to the following facts:

(1)       During the 54th Washington State Patrol Trooper Cadet Basic Training Academy, two trooper cadets were caught cheating on an examination.

(2)       The two cadets that were caught cheating were not terminated from the Washington State Patrol.

(3)       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 probationary year.

(4)       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 examination.

            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 equipment.

            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 forced-choice system.

            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 terminated.

            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 promotion register. 

            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 were terminated.

            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 EMPLOYER

            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 flawed.

            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 previous examinations.

            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 ASSOCIATION

            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 begun.

            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 discipline.

OPINION

            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 itself. 

            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 disciplined.

            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. 

AWARD

            The grievance is sustained.  The Patrol did not have cause to discharge Trooper Jackstadt.  His discharge is hereby converted to


a 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.

 

                                                                                                                  

                                                                                    Jack H. Calhoun

 

103-95WA

 

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