Kalamath County and
Kalamath County Peace Officer's Association
IN ARBITRATION PROCEEDINGS
PURSUANT TO AGREEMENT BETWEEN THE PARTIES
This Arbitration arises pursuant to Agreement between KLAMATH COUNTY PEACE
OFFICERS' ASSOCIATION ("Association"), and KLAMATH COUNTY
("County"), 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 December 8, 1994, and January 5, 1995, in Klamath
Falls, Oregon. The parties had the opportunity to examine and cross-examine
witnesses, introduce relevant exhibits, and argue the issues in dispute.
Both parties filed post-hearing briefs on or about February 10, 1995.
On behalf of the Association:
E. HOAG, Esquire, HOAG, GARRETTSON & GOLDBERG, 209 W. 5th, Eugene, Oregon
On behalf of the County:
A. ERNST, Esquire, BULLIVANT, HOUSER, BAILEY, PENDERGRASS & HOFFMAN, 300
Pioneer Tower, 888 S.W. Fifth Avenue, Portland, Oregon 97204‑2089
Did the Sheriff's Department have just cause to discipline Deputy Davidson? If
not, what is the appropriate remedy?
RELEVANT SECTIONS OF AGREEMENT
ARTICLE 27 - GRIEVANCE PROCEDURE
Section 27.4 Arbitration
Expenses. ... the cost of the
arbitrator and the hearing room shall be borne by the losing party. The question of who the "losing party" is shall be
submitted to the arbitrator who rendered the decision in question.
The arbitrator's subsequent designation of the "losing party"
shall be final and binding. ...
ARTICLE 30 - DISCIPLINE AND DISCHARGE
Section 30.2 Just
Cause. The Sheriff will not discipline an employee except for just
cause. The Sheriff will make all
efforts to impose discipline in a manner which is not embarrassing to the
employee before other employees or the public.
RELEVANT SHERIFF'S POLICIES
2.001 PUBLIC SERVICE
It is the principal responsibility of every member of this Department,
to promptly, courteously, and effectively assist the public. ... Prompt
assistance shall be given to all requests for service, no matter how received,
unless directed otherwise.
Members shall cooperate with all members of this Department and with
members of other public agencies. ...
No member of this Department shall act in such a manner as to bring
discredit upon himself or this Department.
2.006 OBEY ORDERS
Members shall faithfully and promptly obey the lawful orders of a
Superior Officer. ....
2.018 TAKING ACTION IN EMERGENCY
Members shall be ready at all times to preserve the peace, prevent
crime, pursue and arrest criminals, and to engage in enforcement action when
called upon to do so.
Members shall perform their duties in a safe manner and shall utilize
safety equipment provided. Members
shall report any unsafe equipment, conditions, facilities or practices to
their Supervisor. Members shall
correct unsafe situations when it is within their abilities to do so.
Incompetency may be demonstrated by ... an unwillingness or inability
to perform assigned tasks; a failure to conform to work standards established
for the member's rank or position; failure to take appropriate action on the
occasion of a crime; ...
Grievant has worked for the Klamath County Sheriff's Department
("Department") since 1983. Until
the suspension at issue, he had no record of discipline, and his evaluations
On June 7, 1994, the Department disciplined Grievant for alleged
violations of Sheriff's Policies 2.001, 2.005, 2.006, 2.018, 3.019, and 3.021.
It suspended him for five days, with three days of the discipline to be
suspended on the condition that he had no violations over the next twelve
months. The Department based the
discipline on Grievant's responses over the radio during an emergency call on
April 19, 1994.
APRIL 19 INCIDENT
Because of a shortage of supervisors, Jail Sergeant Gary Schrieber
was in charge of both the jail and patrol for the evening shift on April 19.
Shortly after 9 p.m., Grievant was having coffee with Resident Deputy
Charles "Sparkie" Mrkvicka when the dispatcher ("911")
notified him of a "man with a gun" call at a trailer park on the
edge of town, about five miles away.
911 dispatches both city and county police; Oregon State Police ("OSP")
are able to monitor 911 traffic. All
911 traffic is taped. A copy of
the tape, and a transcript thereof, are in evidence.
Relevant parts of the tape, in the order in which they
are excerpted below. Grievant is
"31;" Mrkvicka is "36."
Sam3 is Schrieber. "3L2"
is a City of Klamath Falls police officer.
"D-1" is a narcotics officer for the City of Klamath Falls.
"5652 unit 2" is an OSP narcotics officer.
[911 takes a call reporting a man is waving and shooting a gun at
people at a trailer park owned by the caller's father; the caller reports her
father is en route to the trailer park and is not aware of the situation. 911
contacts Grievant and Mrkvicka.]
911: 31, 36 man with a gun.
0:00 911: 31, 36 respond to Klamath View Trailer Park, 1663 Greensprings, around space number 23. We have a report of a male subject who is apparently armed, apparently he's fired several shots at different trailers and now he's waving the gun around and we don't have any description of him at this point.
31: Copy, now (unintelligible) contact supervisor on this. This meets the criteria that I've been advised not to respond to.
for back-up, put the other call on the shelf if he requests it.
I have to get clearance from a supervisor to roll them.
I'll let you know.
911: I just went
to dispatch Davidson and Mrkvicka to a man with a gun call at Klamath View
Trailer Park, shots had been fired and um, Davidson said that he--I have to
get permission from a supervisor to roll him because of the criteria on this--
911: Yeah, just a minute--
31: Do we have trailers that have actually been struck?
just says he's fired at several, it hasn't said if he's actually struck any or
not. Apparently the owner of the
trailer park is on his way, a Mr. Eddy, but he's unaware that this guy is out
911: He says that this is
apparently the criteria of the kind of calls they're not supposed to respond
to. Is there something new that I
don't know about?
Sam3: Well, if there is, I don't know anything about it.
911: Well, he said I have to call and get permission to roll him.
Sam3: Where is Klamath View Trailer Park?
911: It's at 1663 Greensprings, that one that sits right there on that sharp corner on Greensprings just before you get to the disposal company.
Sam3: And, shots fired?
911: Yeah, apparently so.
Sam3: Well, go ahead and roll him, and then tell him to get in touch with
me 'cause I don't know what he's talking about.
I didn't--don't have any idea neither, but--
Sam3: But, you know, of course, that's not unusual around here.
911: That's true.
Okay, I'll roll him.
Sam3: All right.
Sam3: Roll Sparkie as a backup.
Sam3: All right.
911: Okay, 'bye.
3:04 911: 31 and 36, I have permission from Sam3 to roll you.
copy it. En route.
911: 31 and 36, also David 2 and Detective Haskins from the State are on their way to that location. For your information, owner of the park, Daniel Eddy, apparently is en route but he's not aware that there's a guy out there armed.
10-8 on course there already. Will
you 10-21 the reportee again and find out if the shots are continuing.
911: Hey, she's not on scene, she's in another location. Somebody called her from the trailer park and she called us.
supervisor do you advise you contacted?
911: Sam3, Schrieber.
911: 31, he's not familiar with this protocol on calls. He said to go ahead and roll you, but he said he'd talk to you later about it. He said but it's not unusual that something wouldn't have made it to him yet.
--a patrol supervisor be informed and because of the fact that I do not
have the proper equipment to deal with such a deal.
I'll go ahead and be en route for a perimeter.
911: 10-4. I'll call him back and tell him that.
911: Apparently this is due to Davidson not having the proper equipment to deal with such a call.
Sam3: I have no idea what he's talking about--
911: Anyway, I told him to contact you, but he's going to go out there for the perimeter and I'm throwing my arms up. I don't know what to do 'cause I--
Sam3: Well, they didn't pass anything on to me, which isn't unusual, so--
911: Okay, I'll let you and Davidson--
911: I told him to contact
you, but I thought I'd let you know--
Sam3: When he clears from out there, we can (unintelligible)
911: Okay, let me talk
to you later then.
right when we get in there, is that right?
know, I'm not sure. The
"E" numbers on that thing are laid out real weird and a lot of them
aren't even in sequence.
D-1: 31 from D-1.
D-1: 5652 Unit 2 and I are right behind you. If you want us to sit on the perimeter somewhere.
31: Basically, that's all I'm going to do. I don't have any of the equipment to deal with this, and I've been instructed not to go into a situation like this.
[Traffic among responding officers and between units 31 and 36 and 911
regarding contacts at the scene.]
Mrkvicka recalled saying when he got into his vehicle, "I am
10-8," meaning he was en route. He
also recalled Grievant saying, "We are en route," even before that.
The portion of the tape that can be deciphered does not contain those
comments at the outset of the call.
CHARGES AGAINST GRIEVANT
Captain Roger Pitts received a report of the incident at home on the
evening of April 19. He began
investigating the incident on April 20. His
investigative report and recommendation of discipline, dated May 17, reached
the following conclusions:
Deputy Davidson's actions result in the following:
2.001 Public service states in part "It is the principal responsibility
of every member of this department to promptly...assist the public.
Prompt assistance shall be given to all requests for service..."
2.005 Conduct states in part "no member of this department shall
act in such a manner as to bring discredit upon himself or the
Deputy Davidson taking time to use the restroom while citizen's were
potentially being shot at is a violation of 2.005.
From the time of the call being dispatched to Deputy Davidson advising
dispatch that he was en route was four and one half minutes.
2.006 Obey Orders states that "...members shall faithfully and
promptly obey the lawful orders of a superior officer."
Deputy Davidson obeyed the order of Sergeant Schrieber but questioned
the order to the extent to request dispatch to call another supervisor.
2.018 Taking Action In An Emergency states in part that "members
shall be ready at all times to preserve the peace, prevent crime, pursue and
arrest criminals, and to engage in enforcement action when called upon to do
3.019 Safety states in part "members...shall utilize safety
equipment provided. Members shall
report any unsafe equipment, conditions, facilities, or practices to their
supervisor. Members shall correct
unsafe situations when it is within their abilities to do so."
Deputy Davidson was not ready to preserve the peace, as he was confused
as to what calls he was to respond to, had been confused for a length of time
and had not requested clarification. He
was not ready to preserve the peace as he did not even have a long gun with
him which was readily available. He
did nothing to correct or report any safety concerns that he voiced in his
2.019 Required to Face Danger - Deputy Davidson leaves some question as
to his willingness to face danger but did respond to the call.
3.021 Incompetency states in part that it "may be demonstrated by
an unwillingness or inability to perform assigned tasks...A failure to conform
to work standards established for the members rank or position."
Deputy Davidson states an inability to perform an assigned task giving
the reason of not being properly equipped.
He chose not to be properly equipped.
He failed to conform to work standards in that his number one priority
is to protect persons.
Pitts testified he found no violation of Policy Section 2.019, and the
Department therefore does not charge Grievant with unwillingness to face
danger. He later concluded he
could not substantiate that Grievant stopped to use the restroom before
responding to the call. The Department therefore does not charge Grievant with
violating Policy Sections 2.001 and 2.005 in that respect. Pitts testified Grievant nonetheless violated those sections
because he created confusion for the dispatcher and other officers regarding
whether he would respond to the call. Pitts
viewed the dispatcher as part of the "public" to which Section
2.001 refers. He concluded that
Grievant's conduct also violated Section 2.005 in that it brought discredit to
himself and the Department in the eyes of other police agencies who overheard
the exchange. Pitts testified
that Grievant's length of service made his offense more serious, because the
conduct should not have occurred with a veteran officer. Sheriff Carl Burkhart testified he reviewed Pitts' report and
concurred in his findings.
ALLEGED SHERIFF'S DIRECTIVE
The Department has always provided shotguns as a second weapon to
supplement deputies' handguns. At
one time, it also made available .223 caliber long guns called Mini-14's,
which are similar to an M-16. Rounds
from Mini-14's can shoot through structures.
The Department became concerned about possible harm to bystanders if
the Mini-14's were used in town. It
also experienced frequent damage to the magazines and increasing ammunition
expenses for this weapon. Because
of these problems, in late 1993 or early 1994, it replaced the Mini-14's with
Marlin .45 caliber rifles. Thereafter,
only resident deputies were permitted to carry their personally-owned
Mini-14's on duty.
On February 4, 1994, Grievant and Deputy Patrick Stanton approached
Burkhart in the break room. Also
present were Deputy Thomas Johnson and Clerk Jeanette Kyle-Davidson,
Grievant's wife. No major dispute
exists regarding the events in this conversation.
Stanton and Grievant criticized the Marlins' range, and sought permission to
provide their own Mini-14's. Burkhart
told them to talk to Captain Pitts, but mentioned the Department's safety
concerns over in-town use of Mini-14's. Grievant
and Stanton unsuccessfully sought permission to carry Mini-14's for use in
rural areas. They described recent incidents in which deputies found themselves
out-gunned. Burkhart suggested
that, in similar situations, they assess the situation and decide whether to
engage the suspect, set up a perimeter and contact a supervisor to request
call-out of a SWAT team, or take other action.
No witness, including Grievant, recalled Burkhart suggesting that
deputies refuse to go to the scene of an incident.
Burkhart ended the conversation with the impression that Grievant and
Stanton disagreed with the decision on the type of rifle to use.
Stanton did not view Burkhart's comments as a change in policy
regarding when to respond. He did
believe it expressed an intention to call out the SWAT team more readily than
in the past. Grievant testified
Burkhart cut off any attempt at clarifying his responses by saying it was
Pitts' decision, and that Pitts was unavailable.
Grievant testified he decided to contact a supervisor for clarification
if a situation arose.
Deputies provide their own handguns.
Except for the resident deputies' Mini-14's, the Department prohibits
deputies from using their own long guns.
No written policy requires deputies to carry long guns.
After the Department removed the Mini-14's, it issued a memorandum
prohibiting deputies from using their own ammunition because of concerns
over non-standard rounds.
The Department does not maintain a record of when employees shoot long
guns at the Department's range. It
does keep records of their qualifications with a handgun.
Grievant is an expert marksman. Range
Master Norman Hatcher testified a person who was proficient in using a shotgun
should be able to handle a Marlin rifle.
Hatcher testified Grievant had shot Marlins before April 19. Grievant testified he had shot the Marlins off-duty, but not
at the range, before April 19.
Sometime before April 19, Hatcher ordered Mrkvicka to turn in his
Department-issued shotgun, leaving him with his handgun and his own Mini-14.
Mrkvicka believed at the time that the Department had removed shotguns
from all deputies. He testified
he would have preferred to have a shotgun with him at the April 19 incident.
He later requested and received permission to add a Department shotgun
to his arsenal. He has never used
Department shotgun ammunition, but instead supplied his own.
Mrkvicka testified he would not want to have a Marlin .45 rifle in a
situation where he might have to use deadly force over a distance.
Grievant testified he frequently had trouble finding shotgun ammunition
in the Department's gun locker. He
brought the shortages to the attention of the sergeant on duty, but they
continued. He brought in his own
shotgun ammunition, and once borrowed a box of .00 buck shotgun shells from
the OSP. While he was using that
ammunition, he stopped checking the locker.
However, he stopped using that ammunition after the Department issued
orders prohibiting deputies from providing their own ammunition.
He eventually stopped carrying a shotgun because of the continuing
Stanton testified that in early 1994 he found no shotgun ammunition in
the locker more often than not. When
there was no ammunition, he did not carry a shotgun on duty that day.
He notified the sergeant on duty of the shortages and of the fact that
he was not carrying a shotgun. This
sometimes resulted in the ammunition being replenished.
He testified the shotgun ammunition was replenished shortly after the
April 19 incident, and has not been in short supply since.
Hatcher testified he last replenished the shotgun ammunition supply in
the gun locker in February 1994, when he placed five boxes of shells there.
Normally, he would expect that supply to last a year or more.
He told Pitts during the investigation of this incident that he had
continual problems keeping all kinds of ammunition in the locker.
He testified he has never received a report that the locker had no
ammunition, or that the shotgun ammunition needed to be restocked, nor has he
ever found the locker empty of ammunition.
However, he acknowledged that at times the ammunition supply has
disappeared rather quickly.
Pitts asked Grievant to prepare a memo describing his view of the
incident. That memo reads as
Dispatch gave info of a man with a gun walking through the trailer park
at 1663 Greensprings firing rounds. Dispatch
had limited info, and again advised of shots fired at trailer homes.
These are the conditions which the Sheriff had advised are not to be
handled by town deputies, and a supervisor was to be notified for SWAT call
out. Other examples were
barricaded subjects, hostages, and persons armed with weapons (rifles) having
superior range and accuracy.
With this situation I informed dispatch to advise a supervisor, as per
the Sheriff's instruction in March 94. Dispatch
notified Sgt. Schrieber who ordered myself and Mrkvicka to respond. I did, and set up a perimeter.
Mrkvicka located the responsible by witness contact.
We took the subject into custody on warrants, who had been
semi-barricaded in a camp trailer. He
was armed with a .22 cal. semi-auto rifle, loaded and safety off.
After he was lodged, Sgt. Schriber [sic] requested me to explain the
incident. I advised of the
instructions of the Sheriff.
Due to no shotgun rounds previously available, I had brought some from
home and also obtained some from OSP. After
the directive to remove all "unauthorized equipment" I considered
that to also mean my shotgun ammo. This
leaves me with my side arm.
The other equiptment [sic] needed as I was instructed to relay to you
by Sgt. Schrieber, is a weapon comparable to some of those commonly used by
the criminal element. This has already been discussed with the Sheriff, who already
gave the directive to back off set up a perimeter and notify a supervisor for
a SWAT call-out.
This is not very practical or realistic as the situation is normally
over or exploded by the time SWAT arrives, or they refuse to become involved
because no crime has occured [sic] yet, or it's not a felony.
I am confussed [sic] as to which method I am to use, and when to/not to
respond into a call and handle it, or back off.
Until otherwise directed I will continue under the Sheriff's directive
of not becoming involved in such volitile [sic] situations without the proper
training, equiptment, [sic] and manpower.
also requested memos from others who overheard the 911 traffic on April 19, as
well as those present during the conversation with Burkhart.
He received memos from all those who participated in the conversation
with Burkhart, and one memo from Deputy Rod Dailey, who had served as backup
for Grievant and Mrkvicka on April 19. Dailey
recalled that 911 reported a man "fired several random shots from a shot
gun [sic] into other trailers" and was waving the gun around.
Dailey heard Grievant's request for a supervisor and his reference to
"criteria" and a lack of equipment; he did not hear Grievant refuse
to respond to the call. Instead,
he said Grievant "advised that he would not go into the scene, he would
only set up in a position on the perimeter."
Pitts' report briefly summarized his interviews of ten people,
including the 911 dispatcher, but not including Dailey.
The dispatcher did not testify. Her
comments, as reported by Pitts, included the information that Grievant never
said he was not going to go, and that she believed he was responding
because his radio sounded mobile.
Pitts tape recorded two interviews with Grievant.
In the first interview, Stanton served as Grievant's Association
representative. The second
interview followed Pitts' investigative report.
In the first interview, Grievant described his conversation with
Burkhart. He told Pitts he had
not intended to lead the dispatcher to believe he was not going to respond,
and that he was already en route to the car when he requested a call to a
supervisor. He said he wanted
clarification from a supervisor on how far to "respond into" the
situation in light of the removal of the Mini-14's. Because it sometimes takes time for a dispatcher to find a
supervisor, he wanted the supervisor to be involved early.
He distinguished between "responding into" a situation and
setting up a perimeter.
Grievant said he did not recognize the appellation "Sam3"
used by 911, and therefore sought clarification of the identity of the
supervisor. He explained his comment about a lack of equipment was a
reference to the Mini-14's and a lack of shotgun ammunition. He told Pitts his weapon of choice in this incident would
have been a Mini-14 with a hollow point or soft point to avoid
over-penetration. He expressed
concerns over the Marlins' accuracy. He
claimed he notified Sergeant Woods of a lack of shotgun ammunition, but did
not follow up on it. Instead, he
said he began carrying his own ammunition from home.
In the second interview, Grievant disputed the accuracy of Pitts'
report of some witness' observations. In
particular, Grievant claimed that Mrkvicka denied saying Grievant had stopped
in the restroom. He also said the
dispatcher had told him she believed the entire time that he was responding to
the call. He claimed that some
alleged witnesses had reported they were unable to hear the majority of the
After Grievant's second interview, Pitts called Mrkvicka to ask if he
remembered Grievant using the restroom. Pitts
told Mrkvicka he was either lying to Grievant or lying to Pitts, because
Pitts' notes said he had said Grievant went to the restroom.
According to Pitts, Mrkvicka responded his memory was not real good,
but his memory would have been better at the time Pitts wrote his notes.
Pitts concluded he could not show one way or the other whether Grievant
had used the restroom. He did
not revise his report or make a notation on it of the results of this
EVIDENCE REGARDING GRIEVANT'S CONDUCT
Mrkvicka testified he disregarded Grievant's comments to the dispatcher
as they drove to the trailer park. He
was surprised by Grievant's comments, and considered them inappropriate.
However, they did not distract him from his duties.
Schrieber testified he heard only Grievant's request to contact a
supervisor, but did not hear the later request to contact a patrol sergeant.
Grievant testified he could have used better terminology over the
radio. In particular, he believes
he should have said he was en route but wanted clarification from a supervisor
on how to deal with the situation. He
wanted a supervisor to decide whether he should try to deal with the
situation himself, or merely set up a perimeter and await the arrival of
He characterized the situation as a breakdown in communications.
Grievant attributed his lack of clarity to the fact that he was
picturing the trailer park and the circumstances as well as his instructions
from Burkhart as he was responding. He
testified he was uncertain whether Schrieber knew of Burkhart's comments in
the break room, or that the Mini-14's had been removed.
In the past, Schrieber has sometimes consulted a patrol sergeant or
captain to get clarification of policy before responding to questions
about patrol issues. Grievant
testified he questioned the adequacy of his equipment because of the
information available to him from 911.
In particular, he did not know what type of weapon the suspect had.
The Department has suspended 17 employees since March 1989.
Of those, five were suspended for 10 days or more; the others were
for between one and five days. Of
the latter group, the Department imposed one-day suspensions for
(1) making off-duty calls to a citizen after being ordered not to do
(2) attempting to access another employee's computer files without
authorization, a criminal offense, and
(3) making an unauthorized traffic stop after having been warned about
imposed two-day suspensions for
(1) a traffic accident caused by inattention and the failure to yield
the right of way, and
(2) allowing a person known to have a suspended operator's license to
drive, and having a sexual relationship with the operator's sister.
imposed three-day suspensions for
(1) causing damage to a Department vehicle due to inattention,
(2) going on days off without submitting a report, contrary to
instructions, after prior problems in submitting reports on time,
(3) making derogatory comments to a citizen (although the suspension
would not have to be served if the officer successfully completed training),
(4) domestic abuse of the officer's wife, and
(5) allowing inmates to operate the control center in the jail.
imposed a four-day suspension for pointing a firearm at another deputy, and a
five-day suspension for a series of incidents causing safety and security
concerns in the jail.
Burkhart testified that Pitts once had a serious safety violation
involving discharge of a firearm into a vehicle at the firing range.
Pitts expressed a desire to suspend himself.
Burkhart overruled him, and imposed lesser discipline that did not
EMPLOYEES NOT DISCIPLINED
[Deputy 1] was stopped for cutting timber without a permit, which is
potentially a criminal offense. Burkhart
testified that [Deputy 1] was not prosecuted for the offense, nor was he
formally disciplined for this incident. [Deputy
1] had earlier been suspended for 20 days, with 10 days actually served, for
assaulting a citizen.
Grievant testified a female correction officer dropped a commercial
container of hot dogs from beneath her coat while leaving the jail.
Burkhart testified the Department could not prove she had stolen the
hot dogs. No discipline ensued.
Grievant testified he heard 911 attempt to dispatch [Deputy 2] on a
theft call, with no response. 911
tried again, this time using the code for murder.
[Deputy 2] responded, but declined to take the call after learning it
involved theft. Grievant
testified the dispatchers complained to him about [Deputy 2]'s non-response to
calls. Pitts and Burkhart
testified that [Deputy 2] had the flexibility of not responding to some
calls because of a special assignment to gang activity.
Pitts testified he explained this special assignment when he received
complaints over [Deputy 2] not taking calls.
Pitts does not consider it appropriate for [Deputy 2] not to respond to
911 when called, but has not received complaints of such conduct. Burkhart testified he has talked to supervisors about [Deputy
2] and that they acknowledged he had a history of not responding to calls.
In March 1994, Pitts received a memo from Civil Deputy Rebecca Dailey
about [Deputy 3]. Dailey reported that 911 had tried to dispatch [Deputy 3] to
serve a restraining order after a disturbance involving the subject, but
[Deputy 3] had refused, claiming it was civil deputy work.
Dailey turned on her scanner, and heard [Deputy 3] pick up the
restraining order and report he had served it.
[Deputy 3] commented on the air that "they had been called at the
reportee's whim and the [sic] he had served the Restraining Order but he felt
used." Pitts testified
[Deputy 3]'s comment was inappropriate. He
called [Deputy 3] in to discuss the incident.
No notation was made in [Deputy 3]'s personnel file over the incident,
nor did other discipline ensue.
Mrkvicka testified he overheard 911 traffic involving [Deputy 3]'s
contact with an ex-convict who had been involved in a hit-and-run motor
vehicle accident. [Deputy 3]
radioed that the suspect had a gun. After a period of silence, [Deputy 3] radioed a Code 4
(meaning everything was okay). He
then said he had insufficient information to place the suspect behind the
wheel, so he had issued a citation for hit-and-run.
According to Mrkvicka, an ex-convict in possession of a gun is a
felony, which normally would result in an arrest on the spot. [Deputy 3]'s comments made no sense to Mrkvicka.
The next day, Mrkvicka described the incident to Sergeant Woods and
suggested he counsel [Deputy 3]. Mrkvicka
testified the incident became the subject of discussion among personnel from
other agencies, and reflected unfavorably on the Department.
No discipline arose out of this incident, and Pitts testified he was
unaware of it. Between the first
and second days of this hearing, Pitts initiated an investigation of the
Grievant and Stanton recalled that Pitts characterized [Deputy 3] as
having a "yellow streak." Pitts
acknowledged commenting to Grievant and Stanton that [Deputy 3] had a fear
factor or a lack of confidence, but not using the term "yellow
In 1994, [Deputy 4] had a dispute with OSP officers over responsibility
for investigation of a stolen vehicle that had become involved in an
accident. Both agencies had been
called to the scene. Trooper Lawrence Behrenz testified the dispute delayed the
investigation, and that citizens were calling the OSP to request an
investigation after being told the Sheriff's Office would not investigate.
He recalled that OSP Trooper Austin was quite upset over [Deputy 4]'s
refusal to investigate at the time of the accident.
Grievant testified other OSP officers commented to him after the incident,
criticizing [Deputy 4]'s conduct. Pitts
testified he was aware of a public argument between [Deputy 4] and Trooper
Austin over which agency should investigate, and he received a report from
the OSP that Trooper Austin had taken inappropriate action.
He later learned the OSP intended to complete the investigation.
No formal complaint was filed over the incident, and Pitts did not
investigate [Deputy 4]'s conduct.
Behrenz testified [Resident Deputy 5] was assigned to an arson
investigation in Malin. Behrenz also responded as a member of the Klamath Area Arson
Strike Force, a multi-agency team. [Deputy
5] became upset when he realized the Strike Force had also been called to the
scene. Behrenz assured [Deputy 5]
he was merely collecting evidence, and that he would leave the evidence for
him with the Malin police. Four
months later, Behrenz learned [Deputy 5] had never retrieved the evidence or
followed up on the investigation. By
then, the passage of time had rendered the evidence useless.
Pitts testified he received no complaints over [Deputy 5]'s handling of
the arson investigation, and that arson investigations normally were assigned
to a Strike Force member rather than to deputies such as [Deputy 5].
Burkhart testified he may have received a complaint from the Malin
police chief. He testified it
would be inappropriate for an officer to fail to complete an assignment to
investigate an arson, and could result in discipline.
[Deputy 5] received no discipline.
EVIDENCE PRESENTED BY THE UNION
Burkhart testified that, in recent months, he has told Grievant that if
he did not start conforming and becoming a team player and professional
officer, he would be fired. He
made a similar comment to Stanton, and may have made a similar comment to
Mrkvicka. He testified that
Grievant and Stanton challenge his authority quite often.
Grievant is not vocal to Burkhart regarding his disagreements with
Department policy, but questions things often.
Burkhart acknowledged he may have criticized Grievant for filing an
overtime claim one or two years ago. Stanton
was also involved in that claim. Kyle-Davidson
testified Burkhart told her in September he had signed the paperwork for her
raise under the Jeanette Kyle part and not the Davidson part.
POSITION OF COUNTY
The appropriate burden of proof is preponderance of the evidence.
The County has sustained its burden by demonstrating the policy
violations found by Pitts. The
level of discipline imposed was not arbitrary or capricious.
Discipline was imposed for the entire course of conduct on April 19,
not just the claim that he had been advised not to respond to such calls.
Grievant's conduct was improper in three respects.
(1) Grievant's statement
that he would not go to [sic] the call was unprecedented, and at odds with his
training. His actions put the
Department and the public at risk. It
is beside the point that he responded to the call and took the suspect into
custody. No one knew he was going
to the call until some four and one half minutes after it was dispatched.
Meanwhile, the dispatcher had to call Schrieber twice to get permission
and clarification. Mrkvicka had
to disregard his comments.
The evidence does not support Grievant's contention he was following
Burkhart's directives. Others
at the conversation do not recall Burkhart stating or implying that deputies
should not respond to calls where weapons are involved, or should hold off
responding until a supervisor could be called for possible SWAT call out.
Grievant never sought clarification of this purported directive.
If the April 19 incident had resulted in injuries and a lawsuit,
Grievant's comments would have had a negative impact on a jury.
That the situation did not play out as originally dispatched does not
make his conduct any less culpable.
(2) Grievant questioned the orders of a supervisor, in direct
contradiction of Sheriff's Policy 2.006.
He was "Sergeant shopping."
His attempted justifications are not credible.
It was clear that the sergeant on duty had authority in any incidents
requiring supervision. Grievant
never expressed confusion over Schrieber's role as supervisor or the command
structure. Mrkvicka and Stanton
had no question Schrieber was in charge if a patrol supervisor was not
(3) Grievant failed to have the proper equipment, by his own admission.
Although not required to carry any particular kind of firearm, he had
a variety of weapons available. If
he did not believe he had the proper equipment to be on the road, it was his
responsibility to correct that situation.
His claim of lack of ammunition should not be credited, nor should his
claim that he was not qualified with the Marlin rifles.
Grievant admits being out of line in saying this was a call he had been
advised not to respond to. He
was more than just out of line. He
violated several policies, subjected the Department to ridicule, and put it
at risk of failing to fulfill its primary mission of protecting the public.
The level of discipline imposed was justified.
The Arbitrator should not substitute her judgment for that of
management unless the penalty is excessive, unreasonable, or an abuse of
discretion. No credible evidence exists of disparate treatment.
Other incidents of alleged misconduct are not similar to Grievant's
conduct here. Even if the other
situations were similar, a rational explanation exists for the purported
different treatment of other employees.
[Deputy 2] was ordered not to respond to particular calls at times.
[Deputy 3]'s radio complaint about "feeling used" was far
less serious than Grievant's conduct on April 19. Pitts did not become aware of [Deputy 3]'s failure to arrest
an ex-convict in possession of a weapon until this arbitration, and has not
completed his investigation. [Deputy
4] did not refuse to respond to the stolen vehicle/auto accident, and all
witnesses agree he did respond. No
complaint was ever made concerning [Deputy 4]'s actions in that incident.
[Deputy 5] did not refuse to respond to the scene of an arson, nor
could Pitts recall any complaint over his handling of the arson investigation.
None of the instances for which discipline was imposed resemble
Grievant's conduct. A meaningful comparison of the level of discipline
therefore cannot be made. Moreover,
most of the discipline imposed was more severe than that imposed on Grievant.
Grievant's conduct was unprecedented.
The Department was well within its right to fashion appropriate
disciplinary sanctions. The
decision to impose what amounts to a two-day suspension was neither arbitrary
POSITION OF THE ASSOCIATION
As a non-probationary employee, Grievant has a recognized property
interest in continued employment. The
Agreement prohibits discipline without just cause.
It does not define that phrase. The
Arbitrator therefore must decide whether just cause existed.
The seven tests articulated by Arbitrator Carroll Daugherty in Enterprise
Wire summarize the "common law" definition of just cause.
Applying those tests, the only viable conclusion is that the County did
not have just cause for this suspension.
The County bears the burden of showing just cause.
Grievant did not receive adequate notice of the possibility of
suspension for his conduct. He
was aware of the Sheriff's Policies. However,
the Department did not evenhandedly enforce those Policies.
Grievant had not been disciplined before.
The Association does not contest the reasonableness of the Sheriff's
Policies. It also does not
dispute that the Department conducted an investigation.
However, that investigation was not fair and objective.
Pitts was reluctant to even give Grievant credit for his handling of
the incident. He threatened
Mrkvicka with discipline for untruthfulness when he tried to clarify his
responses. Pitts was unaware of
basic safety issues surrounding response to a critical call.
Until persuaded to do so by the Arbitrator, the County refused to turn
over records of discipline of other employees.
That refusal violated Employee Relations Board case law and volumes of
Because of its bias, the Department failed to recognize how the facts
of this case correlate with the Sheriff's Policies.
Under Rule 2.001, the dispatcher was not "the public" that
required assistance; the complainant was.
Grievant did not violate the plain meaning of this rule.
Under Rule 2.005, Mrkvicka was the only witness who testified he heard
the comments and believed they were inappropriate. The hearsay statements recounted in Pitts' report should not
be considered for the truth of the matters asserted therein.
Even if the Arbitrator considers those statements, one of the
dispatchers indicated awareness of Burkhart's policy that caused the problems
in this case. The dispatcher's
confusion could be viewed as a violation of Rule 2.005, but was de minimis.
It did not cause discredit to the Department for what was said, as much
as discredit for the way the Department has handled the availability of
weapons and ammunition.
Under Rule 2.006, Grievant obeyed orders.
Questioning orders is not disobedience as long as the orders are
promptly obeyed. Under Rule
2.018, Grievant took all appropriate action in an emergency.
Grievant did not have a shotgun with him, but no rule required a deputy
to have a rifle or long gun with him.
Grievant did not violate Rule 3.019.
The testimony is uncontradicted that Grievant and Stanton had informed
their sergeant on a number of occasions of the unsafe working conditions,
because they did not have shotgun ammunition.
The charge of incompetency under Rule 3.021 is double-charging.
Grievant responded to the call competently.
While his comments to the dispatcher were confusing, they do not fall
within the technical definition of incompetency because he promptly performed
his assigned task.
The County has not applied its rules, orders and penalties evenhandedly
and without discrimination. In
numerous other instances of policy violations, the County either imposed no
discipline whatsoever or "counselled" an officer.
Burkhart admitted discrimination against Grievant and Stanton.
He resented their filing of an FLSA claim.
He threatened both with termination for flunking an attitude test,
not for their professional performance. [Deputy
2] did the same thing Grievant did--confused 911 and caused extra work for the
dispatchers. Even if he did not
have to respond to a call, he should have acknowledged the dispatcher. [Deputy 3] is immune from discipline despite numerous
violations of policy. Other
deputies did not receive discipline for more serious conduct.
Discipline is ineffective and contrary to the goal of correction and
rehabilitation if it is administered inconsistently and sporadically.
Grievant's conduct was less serious than that of deputies who were
disciplined. Putting aside
traffic accidents, every suspension without pay involves either a violation of
criminal laws or multiple offenses. Grievant's
conduct is a non-criminal isolated incident of poor verbiage, brought on by
substandard Department practices. At
the very least, the incident should be reduced to a documented record of
counselling or a written reprimand. If
discipline is to be upheld at all, a fair resolution would be counselling such
as that [Deputy 3] received for his statements to the dispatcher.
The degree of discipline was not related to the seriousness of the
proven offense and the record of service.
The converse was true. Pitts
considered Grievant's experience an aggravating factor, not a mitigating
factor. The Department failed to
consider his unblemished record. It
failed to consider the hostile work environment it had created because of his
FLSA and union activity. It
failed to consider the double standard established regarding who can carry
appropriate safety equipment. Employees
have been repeatedly denied access to shotgun ammunition.
The County bears responsibility for these events, and those events
should be considered in mitigation.
The County has also ignored what occurred in this case.
Other than a frustrating few minutes for the dispatcher, Grievant's
comments caused no harm to anyone. The
County makes the most of what could have occurred had this been a serious
call. As a result of this
investigation, the problem of insufficient shotgun ammunition has been
The grievance should be sustained.
The Arbitrator should designate the County as the losing party under
Section 27.4, and the County should bear the expenses of this case.
As the parties recognize, the County bears the burden of proof in this
discipline case. The County must show both that improper conduct occurred, and
that it warranted the level of discipline imposed. It is not enough that the County was convinced by the
evidence available to it at the time. The
County must submit that evidence so its veracity may be tested.
Factors upon which the County did not rely at the time, or which are
not established by the evidence at hearing, play no part in the just cause
Hearsay evidence is admissible in the arbitrator's discretion, but is
entitled to less weight than direct testimony.
Unsubstantiated hearsay is entitled to no weight.
Absent cross examination, one cannot gauge the witness' opportunity to
observe, perceive, recall, and describe events accurately.
One cannot resolve inconsistencies or determine whether any portion of
the witness' account arises from speculation, mistake, or bias.
One also cannot determine whether the person reporting the hearsay
accurately recorded the declarant's comments.
Accordingly, except where corroborated by other evidence, the hearsay
statements in Pitts' investigative report have been considered only as a
record of the information upon which the Department relied, and not as proof
of what occurred.
With limited exceptions,
cause for discipline requires clear and unequivocal notice of the conduct
expected and the consequences for failure to meet that standard.
It is of no moment whether the Arbitrator would consider particular
conduct unacceptable. Rather, the inquiry is whether the County has set a standard
that makes such conduct unacceptable. Where
an employer has been lenient in the past, it must give prior notice that
standards will be tightened.
Due process is an essential part of just cause.
Before making a disciplinary decision, the County must make a
reasonable and fair investigation of the alleged misconduct.
Where additional allegations surface during the investigation, the
County must investigate those allegations if they would make a difference in
the disciplinary decision. The
accused employee must have notice of the specific charges and an opportunity
to give his side of the story before a final decision is made.
Finally, the ultimate decision-maker must be privy to all relevant
information uncovered in the investigation at the time the disciplinary
decision is made.
Discipline must be corrective rather than punitive.
An arbitrator has no authority to second-guess the level of discipline
merely because the arbitrator would have imposed different discipline. So long
as the discipline is within the range of discipline proportionate to the
proven offense, that discipline must stand.
However, if the discipline falls outside that range, or if the offense
proven is less serious than the offense charged, then adjustment of the
discipline is appropriate.
It is troublesome that Pitts did not update his investigative report to
reflect the results of his second interview with Mrkvicka.
The Department does not now charge Grievant with taking time to use the
restroom. No evidence exists
that Burkhart, who was the ultimate decision-maker, knew of the removal of
that charge at the time he reviewed Pitts' report and imposed discipline.
However, for the reasons which follow, it is unnecessary to determine
whether the degree of discipline would have been affected by formally removing
this charge from the disciplinary recommendation.
Grievant admits that his verbal response to 911 was inartful and
unhelpful. That admission does
not end the inquiry. The real question is whether his response departed from the
standards then in effect in the Department, such that discipline was
The County has set up a straw man in characterizing Grievant's
description of his instructions from Burkhart.
Grievant has never said he was told not to "go to" the scene;
he said he was told not to "respond to" such situations.
The Arbitrator cannot conclude that the two phrases have the same
meaning in context. This is
particularly so in light of the fact that Deputy Dailey's memo made the same
distinction between "responding to" an incident and merely setting
up a perimeter.
Policy 2.001 prescribes certain duties toward "the public."
In common usage, that term refers to persons who have occasion to seek
police assistance, not the police officers and dispatchers engaged in
rendering that assistance. Consistent
with that meaning, the Sheriff's Policies include a separate provision, Policy
2.002, requiring cooperation with Department personnel and other public
agencies. Accordingly, the
inquiry under Policy 2.001 is whether Grievant responded promptly to the complainant's
request for service. Under any
view of the evidence, he did. He
and Mrkvicka left the restaurant promptly, and proceeded directly to the
scene. The calls to Schrieber did
not delay that response. The
Department thus has not established a violation of Policy 2.001.
Policy 2.005 prohibits conduct which brings discredit on the
Department. The most reasonable
interpretation of this rule is that public discredit is an aggravating factor
where otherwise improper employee behavior occurs.
In other words, if an employee acts in accord with Department policy,
the employee cannot be faulted if others believe the policy to be unwise.
Setting aside the defunct using-the-restroom charge, the only specific
charge in the investigative report under Policy 2.005 is the same conduct
underlying the alleged violation of Policy 2.001--the delay in advising 911 he
was en route. No evidence exists
of any minimum time within which deputies are required to so report. Absent such a rule, the failure to report that information
does not necessarily bring discredit on a deputy or the Department.
Indeed, Mrkvicka first uttered those words more than three minutes
after the dispatch, but is not charged with misconduct.
At the time Pitts wrote his investigative report, he also charged
Grievant with having stopped to use the restroom.
In that context, a lengthy delay in advising 911 he was en route
underscored the reason for the concern with the restroom stop--namely, that he
delayed in going to the scene. Absent
such a delay in starting en route, however, the Department has not
established any impropriety in the delay in saying he was en route.
At hearing, Pitts amplified the charges under Policy 2.005 in two
respects. First, Pitts testified
that Grievant's response confused the dispatcher and other officers regarding
his intentions. Second, he argued
the entire exchange brought discredit to Grievant and the Department in the
eyes of anyone who overheard it.
The dispatcher did not ask whether Grievant was refusing to take the
call. According to Pitts' report,
the dispatcher believed he was responding.
Similarly, Dailey, who arrived as backup at the incident, did not
report any confusion. Therefore,
assuming arguendo that creating confusion would "bring
discredit," the record does not establish that confusion reigned.
Pitts testified to a two-pronged rationale for alleging discredit in
the eyes of other 911 listeners. The first prong is, in essence, that Grievant
either sounded foolish or made it appear the Department had implemented a
bizarre policy in claiming that he was not to respond to calls of this
nature. The second is that
Grievant proclaimed himself ill-equipped to respond to the call.
The Arbitrator has no doubt that some listeners were taken aback by
Grievant's comments. However, on
this record, the Department does not impose discipline for merely sounding
foolish--on the radio or in public. In
some instances, it does not even investigate reports of such difficulties.
Sergeant Woods did not pass on to Pitts Mrkvicka's report that a deputy
had neglected to arrest an ex-convict found with a gun, nor is there evidence
that he followed up on the report himself.
Burkhart did not pass on to Pitts a complaint from local police over an
unfinished arson investigation, nor did he take action on the complaint.
Pitts used only verbal counseling for a churlish radio complaint
about the allocation of civil and criminal work.
The Department took no formal disciplinary action for potentially
criminal behavior in cutting timber. The
instances in which the Department has investigated and disciplined employees
involved either multiple misconduct or very severe misconduct.
Grievant's intemperate remarks simply did not rise to the same level.
Policy 2.006 requires prompt obedience to orders.
An expression of concern over orders does not equate to disobeying
those orders, so long as the employee nonetheless promptly obeys those orders. Grievant promptly obeyed the order to go to the trailer park.
Indeed, he was already en route when Schrieber gave the order.
Thus, Grievant did not violate the plain letter of this rule.
Assuming that "sergeant shopping" would violate the spirit of
Policy 2.006, Grievant's conduct did not meet that description.
He testified without contradiction that the jail sergeant has sometimes
consulted patrol sergeants or the captain on patrol issues.
His request for such a consultation on this occasion was consistent
with that practice. This is
particularly true given the information from 911--that Schrieber was not
familiar with the "protocol on calls" and that it was "not
unusual that something wouldn't have made it to him yet."
This told Grievant that Schrieber did not realize his concern involved
the removal of Mini-14's. It was
not unreasonable to ask for contact with a patrol sergeant who was more likely
to be aware of recent changes in equipment.
Moreover, as Schrieber's reported comments disclosed a breakdown in communications,
it was appropriate for Grievant to clarify the reason he asked for supervisory
Policy 2.018, in essence, requires employees to be ready to engage in
the normal activities of a police officer.
The rationale for charging Grievant with a violation of this policy is
that he (1) proclaimed himself insufficiently equipped to deal with the type
of situation reported and (2) was confused and did not seek clarification.
This rationale is also the basis for the charge under Policy 3.019,
dealing with safety, and Policy 3.021, dealing with incompetency.
It is reasonable to infer that carrying a long gun, in addition to a
handgun, better equips a deputy to deal with a variety of situations.
However, the Department has not seen fit to require deputies to so
equip themselves daily. Thus,
Grievant's failure to carry a shotgun or Marlin rifle was not a breach of any
formal rule or policy.
A duty to carry a long gun could arise from a well-recognized standard
among police officers, even absent a formal rule.
However, no evidence exists of such a standard in this Department.
On the contrary, Stanton testified without contradiction that he had
told sergeants he was not carrying a shotgun due to the lack of ammunition.
No reprimand or order to carry a long gun ensued.
The charge that Grievant failed to carry the equipment he believed he
needed for emergency calls implies that he had it within his power to carry
such equipment. On this record, he did not.
He had been specifically denied permission to carry a Mini-14, his
preferred weapon. Ammunition
had discouraged him from carrying the shotgun.
On this record, he took reasonable steps to equip himself with the
firepower he believed he needed, but was unable to secure it.
The charge of letting himself remain confused bears some study.
Grievant and Stanton discussed with Burkhart scenarios where they
believed a Mini-14 would be the weapon of choice.
After that discussion, Grievant's principal reported confusion was not
over whether to go to such calls, but over how well it would work to await a
possible SWAT call-out in a situation where he might be out-gunned. Grievant can be faulted for not seeking clarification from
Pitts before an incident arose. However,
in this Department, formal discipline was an atypical response to minor lapses
For all the above reasons, it is concluded that the Department did not
have cause to suspend Grievant. He
did show minor lapses in judgment and faulty communications skills.
However, on this record, the Department has not initiated an
investigation, much less imposed discipline, for shortcomings of similar or
greater severity. Having set the
standard it did, the Department must give notice to employees that it intends
to raise the standard. This it
has not done.
Accordingly, the suspension shall be rescinded and all record of it
expunged from Grievant's files, and he shall be made whole for any losses
suffered thereby. Pursuant to
Article 27.4, the County is the losing party in this matter.
1. The Sheriff's Department did not have just cause to discipline Deputy Davidson. As a remedy, it shall rescind the discipline and expunge all reference to it from its records. It shall also make him whole for any loss of earnings and other benefits occasioned by his suspension.
2. The County is the losing party in this matter.
3. The Arbitrator retains jurisdiction over the remedy portion of this Award and any dispute arising therefrom.
DATED: March 2, 1995
LUELLA E. NELSON - Arbitrator
Sergeant Schrieber is a former patrol sergeant, and had served as
captain under a previous Sheriff.
The Department employs some "resident" deputies, who
work from their homes in the rural areas of the County.
All other deputies work from the Department's headquarters in
Klamath Falls. Resident and "town" deputies often work together on
The Arbitrator has listened to the tape and read a transcript
introduced by the Department. In
some instances, the Arbitrator's tape equipment allowed her to decipher
portions that were unintelligible to the Department's transcriber.
The Arbitrator has relied on the 911 tape as she heard it.
The dispatcher spoke to Grievant and other officers by radio and to
Sergeant Schrieber by telephone. The
tape of telephone conversations with Sergeant Schrieber recorded radio
traffic in the background, permitting both to be put in the proper
sequence. The conversations
with Sergeant Schrieber are italicized.
In firing the Marlins on their own time, Grievant and Mrkvicka had
each found the bullet dropped between eight and nine inches at a distance
of 100 yards. Both a shotgun
and a Mini-14 are more accurate than the Marlins at 100 yards, and the
Mini-14 remains accurate considerably further than either of the other two
He testified it is standard practice to set up a perimeter and
evaluate the situation before moving in on any call involving firearms.
To preserve employees' privacy, non-witness employees who were
described as having engaged in questionable conduct will be referred to by
a number rather than by name.
Grievant testified he was familiar with this incident.
His recollection was that several complaints had been made about
this employee, but that no discipline ensued until a complaint from an OSP
officer regarding an unauthorized stop of his sister.
Familiar examples include fighting on the job and stealing from the
In contrast with his testimony at hearing, Hatcher acknowledged to
Pitts that he had trouble keeping the gun locker stocked.
What was true on the day of the incident, or the day after when
Pitts checked the gun locker, is less important than the ongoing