of Oregon, Department of Education and Oregon Public Employees Union
This Arbitration arises pursuant to Agreement between Oregon Public Employees Union ("Union"), and State of Oregon ("State"), Department of Education ("Department"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.
was held on December 15, 1995, in Salem, Oregon.
The parties had the opportunity to examine and cross-examine witnesses,
introduce relevant exhibits, and argue the issues in dispute.
Both parties submitted the matter on closing oral argument.
behalf of the Union:
Lynn-Marie Crider, Esquire, Oregon Public Employees Union, 1730
Commercial Street, SE, P. O. Box 12159, Salem, OR 97309-0159
behalf of the State:
Stephanie Harper, Esquire, Assistant Attorney General, Department of
Justice, 100 Justice Building, Salem, OR
Whether the reprimand of November 16, 1994, was for just cause; and, if
not, what is the remedy?
RELEVANT DEPARTMENT POLICY
ADMINISTRATIVE BULLETIN 1.2 (Revised 1988)
Although the Government Ethics statutes do not prohibit conflicts of
interest, the law places the burden of reporting such conflicts on the
individual and mandates that public notice be given by every public official
encountering a potential conflict of interest.
This bulletin has been developed to assist the Department employees,
and the members of the State Board and advisory committees and commission to
meet their obligations under the law. It
provides a uniform policy and identifies requirements set forth in the
conflict of interest laws and the code of ethics (ORS 244.040).
Further, it is the policy of the department that its employees should
avoid even the appearance of a conflict of interest.
DEFINITIONS AND TERMS USED IN THIS BULLETIN
Personal Gain: Payment
for services, gift, gratuity, honorarium (whether paid to the public official
or his/her family), but excluding actual expenses incurred while
attending a meeting where the public official's presence is of mutual benefit
to the organization and the Department.
B. CODE OF ETHICS
ORS 244.040 outlines the Code of Ethics which prohibits Department
employees, Board members and advisory committee and commission members from:
Using his/her official position or office to obtain financial gain for
himself/herself, other than official salary, honoraria or reimbursement of
expenses; nor shall the action benefit ... any business with which he/she ...
is associated. ....
MEMORANDUM NO. 4-1993-94
(Issued September 1, 1993)
Pursuant to ORS 244.040, the Oregon Ethics Commission has issued
guidelines for the outside employment of public officials which include the
That private business not be conducted on public time.
That public supplies, facilities, equipment, and personnel not be used
to carry out private business.
That employees will notify their appointing authority in writing of a
potential conflict of interest if private endeavors could potentially be
affected by public employment.
"Public official" and "private business" mean all staff and any entity operated for economic gain, whether personal gain or gain for income-producing nonprofit corporations. "Private business" includes Mary Kay, Avon, Tupperware, Christmas orders, for example, and similar private enterprise. Staff using state facilities, time, supplies or personnel to conduct private business are in violation of state law. This includes ... enjoyment of benefits such as accessibility which are not available to persons who are not public officials. State supplies, including unreimbursed usage of copy machine may not be used for private business or personal benefit, whether the staff person is on duty or off duty. ...
MEMORANDUM NO. 9-1994-95
(Issued May 18, 1994)
Each work unit will develop a system for sharing schedules/calendars of
their employees. Weekly
schedules, including destination, contact person and phone number where staff
can be reached, will be available in each section ("IN" and
"OUT" are not acceptable).
Work units should use the same voice mail password so that other staff
can access messages if necessary.
Check your voice mail several times daily even when you are "out
in the field." ...
Don't use voice mail as a filing system or a "To Do" list.
Mailboxes that reach capacity and cannot accept messages will be
reported to me.
is an expert in the areas of civil rights and American Indian education.
She has worked for the Department in a salaried exempt position as an
Education Program Specialist ("EPS") since January 1987. Her duties require daily contact with persons in other states
and the District of Columbia. In
addition to her work for the Department, she does private consulting and training
nation-wide. Although the
Department does not prohibit such private work, it requires employees to
report it, and prohibits them from using paid time or State resources in
pursuit of such endeavors.
normal work day for an EPS is from 8 a.m. to 5 p.m.
Their duties require evening or weekend work, often away from their
office in Salem. They receive compensatory ("comp") time, but not
overtime pay, for overtime work, which must be approved in advance by their
supervisor. The Department
requires them to complete a weekly schedule in advance, indicating their
planned location(s) each day and the telephone number where they can be
reached; as those plans change, they are to notify the Department.
It also requires them to fill out a time sheet reporting the number of
hours worked each day.
grievance arose out of the Department's concerns with the interplay between
Grievant's duties and her private work. On
September 22 and 27, 1994, Grievant filled out her time sheet to show eight
hours' work. The Department alleges her weekly schedule and other
communications did not reflect her plans or actual activities, and that she
should have shown fewer hours of work on those dates; it also raises
allegations about use of its telephone for her business.
The Union asserts Grievant was reprimanded for conduct that was
consistent with Department practices and policies.
NOVEMBER 16, 1994, REPRIMAND
Superintendent Merced Flores issued a Letter of Reprimand on October 10, and
replaced it with a revised version on November 16.
The revised version at issue reads, in relevant part, as follows:
A recent series of events have [sic] caused us to review your scheduled
work activities. This memo
documents the meeting of October 3, 1994, attended by you, Jerry Rogers, Linda
Couoh, and me, in which you were asked to respond to questions regarding your
scheduled work activities for the weeks of September 12-16 and September
19-23, 1994, and the use of state equipment (specifically the telephone) to
carry out private business.
I have asked all Compensatory Education staff to complete a weekly
schedule, indicating their planned activities for the coming week.
On the schedule you submitted for anticipated activities the week
of September 12-16, 1994 (copy attached), you indicated a 1:00 p.m. meeting on
Thursday, September 22, 1994, with Floy Pepper regarding American Indian
Baseline Essays. You stated that
the meeting was held at Floy's home (telephone number which appears on weekly
schedule). Your weekly schedule
indicates 1:00 p.m. When you were
asked what time you arrived, you estimated that you arrived at 12:30
and left "About 2:00." At
1:35 p.m. on September 22, you left a voice mail message at the Department,
indicating you had finished the meeting with Floy Pepper and would be completing
paperwork the rest of the afternoon.
When asked where you were when you placed that call, you stated you
were at the Portland Airport. You
said that you waited about an hour for your flight, and while waiting, you
worked on a brochure, revised two letters, and reviewed some Portland School
District materials. When asked what time your flight left, you said, "about
2:00." You stated you felt
you had worked a full day on Department business and had brought the work
products back to the office on Monday morning, September 26.
On the schedule you submitted for anticipated activities the week of
September 26-30, 1994, you were scheduled to be at a Site Council Workshop at
the Valley River Inn in Eugene on Monday and Tuesday, September 26 and 27.
You indicated you stopped by the office here in Salem Monday morning,
September 26, and then went on to Eugene.
You stated that you participated in the Eugene workshop on Monday and
attempted to contact Comp Ed staff by phone numerous times, but encountered a
recorded message indicating the number you were trying to reach was invalid.
You stated that you attended sessions on Tuesday until "around
2:30" when you left to drive to Portland.
When asked why you left at 2:30, you said you wanted to allow enough
driving time so that you would not accrue comp time.
At 3:49 p.m., Tuesday, September 27, you left a voice mail message for
me, indicating you had talked with Lorisa earlier, that there did not appear
to be any work issues, and that you would be leaving soon to get "on the
Mid-morning on Tuesday, September 27, the 2nd Floor receptionists found
that calls routed to your office phone were coming back to them because your
voice mail had reached capacity. When
this occurs, it is necessary to access the mailbox, record the messages
manually, and then delete them so that new messages can be recorded, which was
done. You were provided with a
list of those messages at our October 3 meeting (copy attached).
You had 17 "saved" messages and 3 "new" messages.
Among the saved messages were several incoming calls from
out-of-state. One was recorded
September 22 regarding a presentation scheduled for November 5 in
Oakbrook, Illinois for which you would receive a $500 honorarium plus lodging,
meals and travel, and asking that you arrive the day before the presentation.
Another call recorded September 22 was from the Alaska Department of
Education regarding a conference in Anchorage, confirming your lodging at the
Hilton Hotel for September 26 and 27, and indicating that a late arrival on
Monday was OK.
On at least three occasions you have been directed not to use Department equipment to conduct your private business. The attached memorandum to you from Jerry Fuller, dated June 28, 1993, refers to your use of Department staff time and/or Department materials for personal gain. The attached Memorandum No. 4-1993-94 from Bob Burns to all Department of Education staff dated September 1, 1993, clearly states that, pursuant to ORS 244.040, private business is not to be conducted on public time nor with the use of public supplies, facilities, equipment or personnel. The attached copy of my memorandum to you dated September 12, 1994, includes a reference to Bob Burns' September 1, 1993 memo; refers to a discussion at the September 6, 1994, Compensatory Education staff meeting regarding the subject of use of state equipment and staff time; and directs you not use state equipment, materials, and supplies, or staff time for private business purposes.
In our October 3 meeting you indicated you could not control incoming
calls and/or faxes, and that you could find no written policy that prohibits
receiving incoming calls over which you have no control.
You said you never thought of incoming calls as "conducting
private business" because you had not initiated the calls from here.
You said that you tell your personal business contacts not to call you
at the office, but they have your number on your card, and you cannot prevent
them from calling you here. When
asked if you had requested the callers from Illinois and/or Alaska not to call
you here, you said you had not because you were not aware they had called,
having just been furnished with a list of the voice mail messages at this
meeting. However, the September
22 calls from Illinois and from Alaska were in your "saved messages"
mailbox, meaning they had been accessed previously.
To avoid the possible perception of mingling work time with private
business, it is my expectation and the agency's expectation that you:
Inform all of your private business contacts not to contact you by any
means (letter, phone, fax) here at the Department.
Do not use the business cards provided for you by the Department of
Education for activities not directly related to your work assignments with
In spite of your best efforts, if you receive a phone call here at the
Department which relates to your private business, you are directed to inform
the caller immediately that you cannot discuss your private business on
work time and end the conversation.
4) In spite of your best efforts, if you receive correspondence or faxes here at the Department which relate to your private business, you are directed to inform the contact, using your own means and time, that they are not to address correspondence or faxes to you at your work
Robin, you must separate your private business activities from
work activities. Your actions
jeopardize the integrity of yourself, Indian Education, and the agency. As
stated in my memo to you dated September 12, when you have any questions
regarding these issues, please contact me and we will try to resolve these
situations up front before they become problems.
Based on the information you have provided regarding your schedule on
Thursday, September 22, 1994, it appears that your [sic] were not in work
status for the Department of Education after 2:00 p.m. on that date, but
rather were conducting private business.
On your time sheet for the month of September you indicated 8 hours of
regular work time on September 22. You
are directed to adjust your time sheet to reflect the actual number of hours
in work status on that date.
Regarding your schedule on Tuesday, September 27, it appears you were in
work status from the time you left Eugene to the time you arrived in Salem
(your official work station). You
stated you left Eugene at 2:30, and travel time to Salem should not be more
than one and one-half hours or 4:00 p.m.
Your 3:49 p.m. telephone message indicated your [sic] were leaving,
which means your work status ended at that time. On your time sheet for the month of September you indicated 8
hours of regular work time on September 27.
You are directed to adjust your time sheet to reflect the actual number
of hours in work status on that date.
memo constitutes a formal reprimand and will become a part of your personnel
responded with a memo dated October 24, the text of which reads, in relevant
part, as follows:
Since I gained approved leave for September 23 and September 28, and
volunteered openly what was doing on those days to Merced, I find the
accusations of dishonesty and impropriety quite baffling.
The Letter of Reprimand is an attempt to justify the inappropriate
interrogation of myself based on some false assumptions by ODE, generated by
invading my phone messages on September 26, 1994.
To counter these accusations with a written response is insulting and
degrading. However, to clarify
the inaccuracies and incompetency of the ODE accusations, I will provide more
We are required to fill out weekly schedules in an attempt to anticipate
as best we can our approximate plans for the upcoming week.
These schedules often change due to cancellations or additional
meetings, etc. To be held
accountable for exact times is absurd.
I was asked to review the weekly schedules and say whether or not I had
done what was written. I reviewed
both weeks and said "Yes, I had done what was written on the
I was then asked to review in closer detail as best I could remember and
tell exactly what times I had left and arrived at Floy's and had left
the conference in Eugene.
The second paragraph in the Letter of Reprimand implies that I was
evading the time issue. That
is completely unfounded. I
was giving approximated times, not knowing I was to be grilled for
exactness. I had not done
anything wrong, and was astounded to be questioned in such a manner. Since I have never been asked exact times before, I only gave
my best estimates.
I worked until about 11:30 at ODE.
As I left ODE, I told Lorisa, "I am going to Floy's.
When I finish I will work on the Institute brochure, and on letters for
the teleconference. I'll call later." Since
it takes about an hour, I arrived at Floy Pepper's house on the north
side of Portland at about 12:30 or a little after.
I have since spoken with Floy to try to reconstruct times, only because
such an issue has been made of this. Floy
lives five minutes from the Portland Airport.
She and I agreed it was about 12:30 or so.
She and I reviewed a number of books, which she thought might have
relevant information for lesson plan development for the American Indian
Baseline essay project in Portland. She
gave me three of them to review further in detail.
Floy has written a letter to support that I was there about the time
that I have said.
I then drove to the airport and checked in by phone as I said I would
do. I again repeated that I was
done at Floy's and would be completing the teleconference letters and revise
the Institute brochure, as well as review some materials the rest of the
afternoon. As noted in the Letter
of Reprimand, that call was placed about 1:35 p.m.
I am entitled to at least an hour lunch, and a couple of work breaks
which, on this day, I had not taken at this point. I waited for a flight leaving Portland and continued to
do the work I said I would. The
work was completed and on Lorisa's desk first thing (8:00 a.m., 9/26/94)
Monday morning. Friday had been
an approved leave day by Merced.
Twice I said what I was going to do on the 22nd of September.
I filled out the weekly schedule, anticipating that schedule.
I did the work and have the evidence attached.
I deserve to be paid by ODE the full eight hours claimed on my
time sheet. To try to get me to
change that in any way is disputing my honesty and integrity, and attempts
to justify the unwarranted suspicion and unprofessional behavior of the staff
I said what I intended to do. I
did it, and I will be paid for it. I
will not change my time sheet, and Merced should be admonished for even
suggesting that I do so.
4.) September 26 - 17:
Again I was shown my weekly schedule and asked if I had done what was
listed, and I said "Yes." Then
the list of phone messages taken off my phone was presented to me, showing a
message (which was in error) which suggested that I was in Alaska Monday,
September 26 and Tuesday, September 27th. It was then apparent what the assumption had been by ODE all
The assumption was that I was lying about even going to the Valley River
Conference at all.
This assumption was the result of invading messages left on my phone
without my knowledge or permission. The
letter of reprimand said this was done on Tuesday.
Yet I tried to call in to ODE at least six (6) different times on
Monday to pick up messages and check in with Lorisa.
I kept getting a message which said the extensions were
Elizabeth King was my roommate September 26th.
She called in to ODE and was able to get her messages even after I told
her of my difficulty. She can also verify that I was where I said I was (as can
over a dozen other ODE employees, including Joanne Flint, who gave the
concluding keynote at the September 27th luncheon).
The Letter of Reprimand neglects any mention of this line of
questioning, which is the primary foundation for the whole series of
I found out later that Merced had called down to the conference Tuesday,
9/27/94, and sent someone to look for me throughout the workshops.
Since that person did not find me, Merced assumed I had not gone at
I attended the luncheon, visited with Armando Laquardia, packed up my
car, purchased some materials on display, (I have receipt) and departed for
Portland. Again I did not have a
lunch break since the luncheon was more presentations. I arrived in Portland about the time I called to check in
(3:49). If a lunch hour and a
break are added to that time, I am over 5:00 p.m.
Further I arrived an hour early on the 29th to set up for Diversity
Workshop (John Lennsen will verify my early arrival), and stayed 45 minutes
late on that day. Since, also on
September 27th, I worked on the presentations for the 29th and 30th as well,
(for at least a couple more hours after 5:00 p.m.), I think it is again, at a
minimum petty and at a maximum, absurd to ask me to take any
time off for the week of September 26-30th.
I also worked on Diversity Workshop with Tom McKenna Sunday evening,
September 25, to prepare Bingo items.
This whole procedure has been an insult.
It is a weak attempt to justify the inflammatory accusations,
assumptions and unethical procedures of ODE.
I have a growing file of such behavior, and consider this harassment of
the most insidious in nature. I
will not be intimidated or coerced in this manner without protest.
Use of Phones and FAX:
Until the meeting with Chris Durham on September 6th, I was not aware that calls and FAXes placed by others outside ODE were also my responsibility. This was the first clarification on this point, at which time I said I would comply as best as I could with this "new interpretation." I have not been told this three times.
The memo, which is generic, does not clarify this point.
I have tried to admonish anyone who has tried to contact me at the ODE
for personal work and have encouraged them to contact me at home.
As I pointed out both to Chris and at "the interrogation", I
am not responsible for other's actions.
To punish me for what others do is inexcusable, unfair and mean
spirited. Yet ODE has confiscated
a FAX (Lincoln) withheld phone messages (10/21/94 Melora Gaber), and removed
messages from message phone files.
All of these contacts (above) were unauthorized by me.
In fact Melora Gaber, who works for the Alaska Department of Education
is not even the person who asked me to do work for them.
She had never spoken to me before, and had no idea she should not
contact me at work, since I gave that directive to someone else in her agency.
I question the legality of this part of the reprimand. It has the appearance of "clutching-at-straws" in an attempt to find some way to discredit my professional activities. It is petty and unjust to punish me for other's actions, not to mention bordering on unethical itself.
The first paragraph on the second to last page claims I said I had no
knowledge of the two out of state calls.
What I said was, "I had no way of knowing that they would call
me." This is still true.
I give my business cards out at authorized ODE presentations.
The Alaska work, for example, came from doing a workshop at the NWREL
Spring Equity Conference in Portland. The
Illinois call was a reference made by someone else who appreciates my work.
In conclusion, this Letter of Reprimand is completely unwarranted.
It is obviously an attempt to justify the unwarranted assumptions that
I was not where I said I was on both September 22nd and September 27th.
Since I have ample proof of my whereabouts, the phone and FAX scrutiny
has been added to imply impropriety. The
ODE is way out of line here.
I will not remove any time from my time sheet on September 22.
I will consider removing one hour on September 27, only if I can add an
hour and a half for actual time worked on September 29th, and a half hour on
Since I sign contracts for all work on my own time, I have all the
verification I need to prove the accuracy of my private endeavors.
I can also produce letters of all witnesses to my whereabouts described
in my response. Further, I have a
growing file of the scrutiny with which all my actions are viewed.
ODE owes me an apology.
Department has paid Grievant for the questioned hours on September 22 and 27,
pending the outcome of this grievance.
EVENTS UNDERLYING THE NOVEMBER 16 REPRIMAND
Department's concern over the days in question began with Executive Support
Specialist Lorisa Smith, who serves as secretary to Grievant's work unit.
Smith informed Flores of her concerns on September 22 and 27, and
followed up a few days after September 27 with a memo commemorating the
events. The portion of her memo regarding September 22 reads, in
relevant part, as follows:
received a message logged in on my voice mail at 1:35 p.m. from Robin.
In it, she stated that she was just checking for messages and would be
in her meeting with Floy Pepper for the rest of the afternoon.
She did not leave a number where she could be reached.
The Comp Ed schedule also showed her to be scheduled for a Baseline
Essay meeting with Floy all Thursday afternoon.
However, there was clearly airport-like noise and loudspeaker
announcements audible in the background of her message. ... The significance
of this is that it was known via a fax received in the department previously
that she was to be arriving in Nebraska Thursday p.m. where she was giving a
workshop for the next two days. ...
testified she forwarded the September 22 voice mail message to Flores
because it involved a change in Grievant's written schedule.
The actual voice mail message is no longer available.
Flores testified the reprimand accurately reports the message
Grievant left. He and Smith
assumed Grievant would be at Pepper's house for the remainder of the
testified she left the office at approximately 11:30 a.m. on September 22,
almost an hour later than she had hoped to leave.
She went directly to Pepper's home.
By the time she finished meeting with Pepper, Pepper's house cleaner
had arrived, so she left Pepper's and went to the airport, nearby, to work on
the materials Pepper had given her. She
called the Department from the airport to notify Smith she had left Pepper and
was working on paperwork. She
acknowledged she did not leave a number at which she could be reached.
She testified she worked at the airport until her flight left, about an
hour after her call, and continued to work during the flight until well past
5:00. She did not take a lunch
break that day. She made calls to
Flores and another Department staffer over the weekend after returning from
Nebraska. She testified she
included the hours she worked at the airport and on the flight in the eight
hours reported for September 22; she did not count the time spent on weekend
Smith's memo regarding the events of September 26 and 27 reads, in relevant part, as follows:
The Department had paid for Robin to attend a workshop in Eugene on
Monday and Tuesday, 9/26 & 27, with several other ODE folks.
She was there Monday. On
Tuesday morning, I had a message on my machine from Robin that she was at the
workshop, phone number 687-0123, but she would probably be hard to reach
because she was in and out of workshops all day.
Later in the morning, the front reception switchboard asked me to clear
Robin's mail box because it was full and they were having to reroute calls
coming to her. I asked Terry
Nicholson to give me access to Robin's messages, and proceeded to record and
clear them out of her box. A copy
of those messages is attached.
There was one particularly troublesome message.
It was dated 9/22 and was from a person (Malora Gabor) at the Alaska
Department of Education, giving Robin instructions regarding her (Robin's)
lodging at the Anchorage Hilton September 26-27 including instructions for
late arrival on Monday and mentioned her presentation at a conference the 27th
and 28th. The phone numbers are on the attached list.
I dailed [sic] the Hilton number, asked for Robin Butterfield, was put
through immediately; when there was no answer the reception desk asked if I
wanted to leave a message which I declined. ...
later called the Eugene number she had left, asking that she call me.
She did not respond to that call.
testified she was concerned about the Alaska message because she had not been
aware that Grievant was scheduled to be in Alaska on the dates indicated.
She typically is aware of scheduled workshops and conferences.
Also, she had previously been instructed to forward to Flores any
material that came in that was not clearly related to Department business.
testified he tried to call Grievant in Eugene between noon and 1:00, and
learned she had checked out that morning.
He immediately checked with both the conference coordinator, Sara
Jane Bates, and the coordinator of the Eisenhower Program, Wanda Monthley;
both said they believed Grievant had left.
Bates told him the conference luncheon was still in session.
The next day, he happened to run into Monthley, who told him Grievant
had left the conference after lunch. Flores'
file notes included the following description of his attempts to reach
Grievant on September 27:
tried myself to call Robin at the Valley River Inn (687-0123) at 1:00 p.m.
The lady at the hotel operator/receptionist had indicated that Robin
had checked out and referred me to the conference registration desk. I spoke with Sara Jane Bates and said she thought Robin had
left. I later got a voice mail on
Tuesday afternoon from Joanne Flint indicating that Robin had left right after
lunch. When I spoke with Wanda
Monthley on Wednesday morning, September 28, she also confirmed Robin leaving
to Personnel Director Linda Couoh, the Department never questioned that
Grievant was actually at the Eugene conference; it was merely concerned about
the time at which she left and the personal business phone messages
retrieved from her voice mail during that time.
Grievant testified she was asked repeatedly, and with incredulity,
whether she had been in Eugene on September 26 and 27.
testified she began her day on September 27 with a 7:30 breakfast meeting with
Elizabeth King, with whom she shared a room at the Eugene conference.
She stayed through the luncheon, ending around 1 p.m.
She testified she talked to Armando Laquardia about site councils and a
diversity pamphlet. She checked
out of her room, loaded her car, and went to a store at a nearby mall.
She estimated she finally left Eugene around 2:30 p.m., in time to be
sure to be at the airport for her flight.
She stopped to call the office from Salem or Woodburn around 3:49.
She had ended work by then. She
had not had a lunch break that day, because the conference luncheon included
presentations. She did not come
to the office because she needed to get to the airport and because she did not
believe she had to come in.
testified she normally saved messages she retrieved from the field until she
had a chance to return them. Until
this occasion, her voice mail box had never been full.
She testified she was scheduled to arrive in Alaska late on the night
of September 27. After retrieving
Gaber's message, she called Gaber back to correct the information regarding
the date of her arrival and to request that all further calls go to her home.
All of her prior contacts regarding this engagement had been with
someone other than Gaber, and had occurred at meetings and through her home
telephone. She testified she did
not accept the speaking engagement in Illinois.
Until she returned the call, it was not clear whether the caller was
asking her to speak, or merely asking for the name of a speaker.
testified she tried to pick up her voice mail messages several times on
September 26 and 27, but kept getting a recording saying the code was invalid.
She mentioned this difficulty to King.
According to Grievant, King told her she had been able to pick up
her own messages with no difficulty.
March 1, 1993, Grievant wrote a letter to then-Assistant Superintendent Jerry
Fuller to respond to a discussion held on February 24.
With regard to conflict-of-interest and working hours issues, she
acknowledged she may have sent out a few pieces of mail to outside clients,
and offered to pay $2.90 for that; at the same time, she protested that
"the two pieces given to me on 2/24/93" had never been mailed.
She argued that "The justification for suspicion is completely
unfounded," and offered to respond to any other examples.
She protested any insinuation that she made a regular practice of
mailing such items out. She
asserted she worked much more comp time than she claimed.
She protested the scrutiny she received on both comp time and her time
sheets, as well as the "accusitory [sic] tone" used in questioning
her time sheets. She objected to being questioned about her use of the
photocopying machine and asked whether others were similarly questioned.
Much of the letter dealt with other matters.
She repeatedly expressed concern that she was being subjected to
disparate scrutiny of her actions. She
argued that some of the activities for which she was criticized were, in fact,
part of her duties. She noted
that "The comment that I would have to be watched closely was insulting
and borders on harassment ...." She
repeatedly suggested that the Department should discount criticisms received
from three unnamed persons, to whom she attributed most of the questions about
April 22, 1993, the Department disapproved Grievant's report of a potential
conflict of interest. It
concluded work she had reported for an entity called "REACH" would
be in conflict with her duties for the Department.
It therefore advised her to refrain from performing compensated
services for REACH.
June 18, 1993, Fuller met with Grievant and her shop steward.
Fuller testified this was one of several meetings regarding specific
conflict-of-interest and working hours concerns.
Grievant testified Fuller asked her to write a statement to the effect
that she had not used Department time, personnel, or resources for personal
gain. She responded by asking how many staff members were asked to
prepare similar statements. She
recalled going over documents she had prepared and discussing how each related
to her work for the Department. Fuller
followed up with a memo reading as follows:
Robin, I would like to review with you our conversation of June 18, 1993
during the meeting in my office with you and Jerry Rogers, OPEU steward.
I requested if you had utilized any staff time or Department material
while conducting workshops out of Oregon for a fee that you provide a
statement declaring whatever staff time or materials used in conducting these
I recall your response was that in your mind you had not used staff or
materials to do outside work. You also stated that you resented the charges of your misuse
of Department of Education resources and that you would be happy to respond to
specific charges in writing and if you had inadvertently misused Department
staff or materials doing work outside the state, you would be happy to
reimburse the Department of Education. Jerry
Roger agreed that specific charges should be made.
I said I would get back to you on this matter.
wrote a lengthy letter on July 7, responding to this memo and other
contemporaneous discussions with Fuller.
Regarding conflict-of-interest and working hours issues, she protested
having been required to take vacation time for a day when she believed she had
worked over eight hours. She
attributed much of the uncertainty about her schedule to a lack of performance
by the secretarial staff. She
repeated many of the same points raised in her March 1 letter to Fuller.
She objected to a comment which she interpreted as a threat to her
job security if she continued to represent American Indian interests in
meetings. She objected to being "managed by suspicion and
innuendo." She also
discussed issues related to her budget.
testified he asked all of the staff to keep the secretaries informed of their
whereabouts, particularly when the legislature was in session.
He testified he repeatedly instructed Grievant to let her secretary
know where she was. He told her
she had to accurately report what she was doing and that he had to be able to
reach her at all times. Grievant
testified that, in the context of the other matters at issue, she considered
the issue of time sheets a minor concern.
She did not consider any of the meetings with Fuller to be a warning
regarding her time sheets because, on each occasion, the specific concern
raised was resolved without the issuance of any formal complaint.
In her view, a formal accusation of wrongdoing could occur only as a
written reprimand or other written documentation.
She testified she has heard other EPS's criticized in recent years for
doing keynote speeches, and the Department's forms have gradually begun to
call for greater detail in accounting for comp time.
On September 6, 1994, Flores and Director of Management Services Chris Durham met with Grievant. In a memo memorializing the meeting, Durham wrote that Grievant
understands that even receiving a FAX or telephone call for personal business
is in violation of this law. In
the case of an incoming personal business call, [Grievant] was told to
immediately inform the caller that she cannot discuss the subject on the job
and to call her at home.
followed up with a memorandum to Grievant on September 12, reading, in
relevant part, as follows:
On Tuesday, September 6, 1994, Chris Durham and I informed you that the
use of state equipment (fax, telephone, computer, printer, etc.), supplies
and materials, and staff time (including yours and support staff) must not be
used for any private or personal business purpose.
You were given a copy of Memorandum #44-1993-94, dated September 1,
1993, on this subject. As
indicated in our conversation, the use of state property and staff time for
private and personal business is a violation of state ethics law.
In addition, the subject on the use of state equipment and staff time
was presented to all Compensatory Education staff at a meeting on Tuesday,
September 6, 1994.
Employees are prohibited from using state equipment, including incoming
telephone calls and incoming fax messages for conducting any private or
personal business. It is imperative
that you do not use state equipment, materials and supplies, and staff time
for private or personal business purposes.
you have questions or need further clarification, please feel free to talk
with me. Thank you in advance for your cooperation.
testified this meeting was the first time she was told that receiving incoming
calls and FAXes was a violation of the conflict-of-interest policy.
She expressed frustration with this directive because she often did not
know until the call came in, or sometimes during the course of a conversation
that also covered Department business, that her caller wanted to arrange for
her private services. She
testified that, until this meeting, when such calls came in, she completed the
conversation. She now understands
she is to terminate the conversation immediately and tell those callers to
call her at home.
OF CONFLICT OF INTEREST POLICIES
testified she has enforced the Department ethics policies to prohibit the
distribution of catalogs and order forms for such businesses as Mary Kay and
Avon to employees at work. She
prevented employees from using break time to deliver Avon and Tupperware products
to employees who were not on their breaks.
She stopped an employee from using the Department's copier to run off
solicitations. When Couoh
discovered an employee was receiving calls at work in response to an ad to
sell his vehicle, she instructed him to terminate those calls immediately and
inform the callers he would call them back on his own time.
She reprimanded an employee who used the Department's computers to
enter a "get rich quick" contest on the Internet.
OF HOURS POLICIES
to Flores, when Grievant completes work away from the office, she is expected
to report back to the office if there is time to do so before the end of the
work day. Travel between her
Salem office and other work sites is considered work time; travel between
Salem and her home in Tigard is not.
to EPS Gloria Muniz, employees historically have been able to skip lunch and
leave early without reporting that to their supervisor.
She understands she receives a one-half hour lunch; when she
"flexes" her lunch, she leaves no more than half an hour early.
Flores testified he was unaware that employees "flex" their
schedule in this manner. Muniz
has performed work at the airport while waiting for a flight on Department
business, but not when traveling for vacation.
The Department has begun issuing laptop computers to some EPS's so
they can work on paperwork while away from the office.
Grievant testified other EPS's do outside consulting similar to hers, but to a lesser extent. Because of workshops she holds with teachers, her hours are more irregular than Muniz'. She brings materials with her to work on when she has time. After meetings in Portland, she often uses a spare desk there to work. Because Pepper is old and frail, Grievant often meets with her at her home. She testified that, on one occasion, Fuller instructed her to work at home for three days to complete a project.
evidence exists of just cause for this reprimand.
The Department does not prohibit Grievant from using her vacation and
comp time to conduct her private business.
The key is that she is not to conduct that business on the Department's
time. The issue is not her work performance or whether she
completed her responsibilities. On
September 22 and 27, Grievant was not on her personal time during the hours
when she was conducting her personal business.
Her schedule showed where she was supposed to be, and the Department
expected her to be there, working for the Department.
September 22, Grievant was at the Portland airport waiting for a flight
related to her private business. On September 27, she left the conference early and drove home
to catch a flight for her private business.
She had to have known ahead of time what her schedule was in planning
those flights. That knowledge
should have been reflected in her schedules, but was not. The Department has informed her of its expectations.
Grievant was conducting her private business on public time.
The appropriate response was a reprimand to point out the Department's
expectations, where Grievant did not meet them.
voice mail messages from out of state were left very shortly after Grievant
received specific clarification that the conflict-of-interest policy applied
to such calls. The Department told Grievant in the September 6 meeting what
it expected her to do when she received such calls or FAXes.
As of the October 3 meeting, she still was not complying.
has not separated her private work from her public work.
The intermingling has affected her work for the Department by requiring
this proceeding. If she had made
a clean separation between the two, this hearing would not be occurring.
The Department has the right to expect its employees to perform
Department work on a schedule that both the employee and the Department
understand and agree to. These
were not spur of the moment schedule changes where after-the-fact notice is
messages taken off Grievant's voice mail raised justifiable concerns, because
they were not related to the Department's work.
After the fact, the confusion in dates for Grievant's Alaska trip has
been explained. However, when
the Department retrieved those messages, it had an obligation to find out what
happened. The decision to
reprimand Grievant was justified because her superiors heard nothing to mitigate
Union has not shown that anyone in supervision was aware of any alleged
practice of handling schedules as Grievant did.
Flores denies knowing of any such practice.
The practice alleged does not match the practice of which Flores was
was at the airport at 1:35 on September 22, waiting for a personal flight.
The Department does not pay employees to wait for personal flights or
to travel for personal business. On
September 27, Grievant called from home at 3:49 when she was supposed to be in
Eugene all day. The call demonstrated
she was on her way to engage in private business.
In fact, she admits she stopped at the mall on way home, which also was
not related to Department business or travel.
The Department gave Grievant sufficient warnings; she knew of the concern about separating her private work. The record shows three circumstances where that separation did not happen. This reprimand concerned those instances. The Arbitrator should sustain the reprimand.
OF THE UNION
thrust of this lengthy reprimand is in the three alleged violations of the
earlier directives. The charge is
unclear and difficult to respond to. It
appears the allegation is misuse of Department time or equipment.
Although the Department now says all it asks is that Grievant write a
schedule reflecting what she is actually going to do, the reprimand does not
talk about that. The reprimand is
for her alleged failure to separate personal and private business.
Department is aware of Grievant's private consulting business, involving
activities out of state similar to what she does for the Department.
That inevitably causes fuzziness in separating her personal and public
business. The Department may or
may not have the right to prohibit that conduct.
However, it has not prohibited it.
The Department can only demand reasonable efforts to achieve
reprimand is for conduct which is not in violation of reasonable expectations,
and is not for just cause. The
documentation of the September 6 meeting reflects that Grievant was told that
even receiving a call or FAX violates the Department's policy, and was told
to immediately say she could not talk at work and to call her at home.
That is a reasonable accommodation of the Department's concerns.
An employee cannot stop outsiders from making calls.
It is reasonable to ask an employee to do what she can to stop those
calls, and to end any calls that turn out to be for personal business.
handling of the calls retrieved on September 27 did not violate the directive.
The September 6 meeting anticipated any possible problem and gave
Grievant latitude to deal with such calls reasonably. However, the Department disciplined her for something she
could not avoid. The calls from
Alaska came to Grievant's office as a result of a mistake by the people in
Alaska. Those calls therefore
could not be a basis for discipline.
next allegation is stealing Department time for personal business.
For years, EPS's have worked flexible hours--at night, on the road, and
at times early in the day. They
are not 8-5 desk workers. The
Department has the right to expect them to put in a 40-hour week.
However, the practice of allowing them to flex schedules allows them to
work in a manner that is the best use of their time. Muniz may not return to the office after meetings, and may do
her paperwork where she is. Similarly,
Grievant works in various locations. Grievant
lives in Portland. Reasonably,
the Department has permitted her to avoid driving back to Salem for a brief
end of day, but to finish out her day in Portland.
paperwork away from the office, on a day when Grievant was also traveling for
personal business, is no different from doing it when traveling for
Department business. Given the
history of employee responsibility and discretion, it was no abuse of
Department time or policy to work where Grievant did, so long as she can show
she spent eight hours working that day.
comments in the October 3 meeting are irrelevant; the only question is whether
her description of her activities was credible.
On September 22, she worked well over eight hours.
She worked approximately eight hours on September 27, not significantly
less. Given the history of
employee discretion, her conduct was appropriate.
the Department wishes to promulgate a rule that employees can only perform
work outside the office if they are at a specific meeting, and may not do
other work outside the office, it must tell employees that.
No evidence exists that such an instruction has been given.
The Department has not established that Grievant abused Department time or equipment. The reprimand therefore was unjustified.
Department bears the burden of establishing, by clear and convincing evidence,
that just cause existed for the written reprimand.
In particular, it must establish that Grievant knowingly violated
Department rules or policies.
verbally-promulgated rule or policy is as enforceable as a written one.
Verbal instructions do create the risk of misunderstanding and faulty
memory, particularly with the passage of time and changes in personnel.
If there is a reasonable misunderstanding of the policy, the risk
must fall on the employer, which had it in its power to express its
expectations clearly and completely. At the same time, employees are responsible for acquainting
themselves with the rules and policies, and seeking clarification if they
are uncertain of their obligations. So
long as employees are on notice of an employer's expectations, the employer
is entitled to expect their compliance, even if employees disagree with the
rules. The Arbitrator has no
jurisdiction to re-write or revoke those rules and policies.
Department must apply its rules and policies evenhandedly--that is, it must
treat similarly-situated employees the same.
A corollary of that obligation is that different policies may apply to
differently-situated employees. That
is significant here because Grievant acknowledges she probably does more
outside consulting than most of her co-workers.
That difference creates more situations in which she must exercise care
to avoid even the appearance of intermingling personal and business
reprimand begins by discussing discrepancies in Grievant's weekly schedule,
and ends by directing her to correct her time sheets.
There is thus no question that the reprimand discussed concerns over
the way she was reporting her activities on both types of documents.
Much of the suspicion arose out of the apparent discrepancies between
what her weekly schedule said she would be doing and what her time sheets
reflected, on the one hand, and what other information indicated she was
actually doing, on the other hand.
acknowledges she had been instructed to update the secretarial staff regarding
changes in her schedule, as Fuller testified.
Indeed, her July 7 letter blamed the secretarial staff for not passing
on information regarding changes in her schedule.
Thus, while she might reasonably believe that minor schedule changes
did not call for notice to Smith, she certainly was aware that major changes
should be reported. She did not
meet this obligation on September 22.
Arbitrator does not doubt that last-minute changes can disrupt any schedule.
However, the September 22 change cannot reasonably be called
last-minute. Grievant knew by the
time she left the office that morning that she was scheduled to fly to
Nebraska in mid-afternoon. Although
she told Smith she would be meeting with Pepper and then working on paperwork,
she omitted mention of her travel plans.
She again omitted any mention of a change in her location when she
called in; only the airport noises in the background alerted Smith to this
change. On this point, it is irrelevant
whether she was doing Department work while in the airport or on the flight to
Nebraska. She knew she was to notify the Department of changes in her
schedule; she neglected to do so despite two opportunities.
Corrective action was thus warranted to impress on her the importance
of advising the Department of changes in her schedule when she had a
reasonable opportunity to do so.
had some leeway in their work location, as required by their duties away from
the office. However, Grievant
created at least the appearance of a conflict of interest by scheduling her
personal business travel during the normal workday.
Arranging her schedule in this manner created the impression that she
was using work time to benefit her personal business and conducting private
business on work time. On the
other hand, it is undisputed that she completed Department work between the
time she left Pepper's house and the following Monday morning.
Under the Department's policies, she was entitled to claim comp time
for work performed outside work hours. It
would exalt form over substance to require amendment of her time sheet to
claim comp time, rather than regular work time, for those hours. However, the Department was warranted in reminding her of the
need to accurately record her time.
schedule indicated she would be at the conference in Eugene all day on
September 27. She did not notify
the Department that she would not finish out that day's sessions.
On the contrary, her morning call to Smith indicated she would be in
and out of workshops all day. By
her own testimony, she was unable to access voice mail (although no evidence
exists that she mentioned this difficulty when she called in), and thus could
not be contacted through that medium. When
she checked out, the Department lost its last means of reaching her. Finally, her 3:49 message was the first notice the Department
received of a change in her schedule. Although
that message indicated she had talked with Smith, Smith's recollection was
that she never received a phone call from Grievant, despite the message Smith
left at the hotel that morning. The comment that she was going to get "on the
road," coupled with other information that she had left the conference
right after lunch, left the reasonable impression that she was already at home
and about to embark on her personal business trip to Alaska.
concern raised on September 27 is not whether Grievant adhered to a strict 8-5
schedule; she was not expected to do so.
Rather, the concern was with the Department's ability to contact her
and to determine what she was doing, when, and where, from the information
available. As with the September
22 incident, she bypassed opportunities to update the Department on her
activities. In these
circumstances, cause existed to admonish her to alert the Department to
changes in her schedule.
testimony does not establish a mutually-accepted practice of
"flexing" a half-hour lunch break to the end of the day, in that she
testified she did this without notifying the supervisor.
Nonetheless, it is clear that EPS's had some flexibility in their
hours, consistent with their work obligations and their salaried exempt
status. Even accepting Grievant's
testimony that she called from the freeway rather than from home, she called
over an hour before the end of the normal workday, after stopping for an unspecified
period to shop at the mall. Absent
proof of a mutual understanding, the Arbitrator has difficulty accepting
Grievant's thesis that a conference luncheon that includes presentations is
not a lunch break. In these
circumstances, the Department reasonably directed her to adjust her time sheet
to reflect her actual hours in work status on September 27.
turning to the portion of the reprimand dealing with Grievant's telephone usage,
much of the reprimand reiterated instructions previously given both verbally and
in writing regarding how to handle incoming calls.
The fact that Grievant's voice mail included messages relating to her
personal business did not establish that she had failed to instruct those
callers to call her at home. On
this record, the most troublesome incoming calls came without Grievant's prior
knowledge that those calls were pending.
However, when the Department became aware that Grievant had received
personal calls at work, it was appropriate to remind her of the previous
reprimand also notes Grievant had saved personal calls in her voice mail box,
referring specifically to calls that came in on September 22.
Memorandum 9-1994-95 prohibited using the voice mail box as a "to
do" list; doing so with phone calls relating to her personal business fell
within the prohibition on using Department facilities for her personal business.
As it happened, it also created an operational problem for the Department
on September 27 because it contributed to her full voice mail box.
This necessitated using staff time to manually record the messages and
clear her voice mail box. Cause
thus existed to admonish her for using her voice mail system in this manner.
The reprimand of November 16, 1994, was for just cause.
LUELLA E. NELSON - Arbitrator
The original reprimand said Grievant had said she arrived at 12:00
noon, then 1:00, then 12:30 or 1:00.
The original reprimand said Grievant had "indicated you would be
in a meeting with Floy Pepper the rest of the afternoon."
King was not called as a witness.
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028