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Title: Polk County and Polk County Deputy Sheriff's Association
Date: May 29, 1996 
Arbitrator: Luella E. Nelson 
Citation: 1996 NAC 112

                                                   IN ARBITRATION PROCEEDINGS

                                      PURSUANT TO AGREEMENT BETWEEN THE PARTIES

 

In the Matter of a Controversy

between

Polk County Deputy Sheriff's Association,

and

Polk County.

RE: Ron Smith Discipline Grievance

ARBITRATOR'S

           OPINION AND AWARD

 

                                                                                            

This Arbitration arises pursuant to Agreement between Polk County Deputy Sheriff's Association ("Association"), and Polk 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 parties.

Hearing was held on March 25, 1996, in Dallas, 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 April 16, 1996.

APPEARANCES:  

On behalf of the Association: 

Mark J. Makler, Esquire, Hoag, Garrettson, Goldberg & Fenrich, 1313 NW 19th Avenue, Portland, OR   97209 

On behalf of the County: 

David Doyle, Esquire, County Counsel, Polk County, Polk County Courthouse, Dallas, OR   97338

 

                                                                         ISSUE

 

Was the imposition of discipline for just cause; and, if so, was the discipline imposed progressive?

 

                                              RELEVANT SECTIONS OF AGREEMENT

                                            Article 32 - GRIEVANCE PROCEDURE

...

(D)  Step IV. ...

The arbitrator's decision shall be final and binding, but the arbitrator shall have no power to alter, modify, add to or detract from the terms of this Agreement.  The arbitrator's decision shall be within the scope and terms of this Agreement and in writing.  The arbitrator's decision shall include detailed findings and conclusions, together with an explanation of the reasoning utilized in making the decision(s).

...

                                        Article 35 - DISCIPLINE AND DISCHARGE

...

(B)           Minor or first Step Actions.  Disciplinary actions such as written letters of warning or caution are usually first steps taken in constructive and progressive discipline.  As a general rule, such are to be taken for infractions of a minor nature.

(C)           More Serious or Secondary Actions.  Disciplinary actions such as ... suspension, ... will be used for more serious offenses or when previous disciplinary actions have not corrected unacceptable patterns of performance or misconduct.

(D)          Administration of Discipline.  Disciplinary actions will be administered promptly, in a fair and equitable manner, and only for just cause.

...

                                                                         FACTS

Grievant is a Deputy Sheriff in the Polk County Sheriff's Department (the Department).  He received a three-day suspension, based on the charge that he filed an untruthful report.  The report involved a complaint of reckless driving made by a female citizen (identified herein as [W]) on the even­ing of May 11, 1995.  The notice of suspension was not introduced in evidence.  According to Lt. Robert Wolfe, the basis for the discipline was that Grievant failed to write truthful information in an official document and placed false information in a public document.  The County acknowledges that, if Grievant's written report was not untruthful, then no basis for discipline exists from this incident.

[W's] Calls to Dispatch

The parties agree that [W] called the Department twice on May 11 regarding the reckless driving incident.  The precise contents of the second call are unclear.  Police Clerk Laura Sue Dilts testified she reviewed tapes for May 11 and 12 for eight hours.  She found [W's] second call to Dispatch in that process.  Her recollection was that [W] said she could not identify the driver, and may have said she could identify the passenger.  Sheriff Ray Steele testified he had a transcript of the call in his file, but did not recall its contents.  Lt. Wolfe did not testify to the call's contents.

The Response to [W's] Report

Lt. Wolfe investigated the swing shift activity on May 11 because of an un­re­lated incident the same evening, known as the "Black Rock" incident.  The Black Rock incident involved the discovery of a dead body after a delay in receiving and responding to a request to check on the welfare of the deceased.  Grievant re­ceived a letter of reprimand as a result of his involvement in the Black Rock incident.

On May 11, Grievant was serving as Field Training Officer for Deputy Bernie Krauger.  He shadow­ed Deputy Krauger and assisted him with his calls, and also covered calls in his own area.  [W's] complaint was dispatched generally at 21:17.  Grievant advised Dispatch that all units were out of posi­tion.  Grievant asked to have the case assigned to himself at 22:31.  At that point, Deputy Krauger asked whether he should respond, since the call involved his area.  Grievant told him not to "get greedy."  Grievant testified Deputy Krauger needed to complete work at the office that evening.

In his investigation of swing shift activities, Lt. Wolfe noticed that Grievant cleared [W's] report immediately upon receiving it.  Lt. Wolfe testified it is not unusual for an officer to initially clear a call when he is out of the area, then follow up later.  Grievant's report listed the names, address, and telephone number of the vehicle owner (herein referred to as [AL]) and the vehicle owner's father (herein referred to as [PL]); and contained the following handwritten entry:

[AL] owner of P/U, (not at home) talked to [PL] and informed him of reckless drive.  [W] was unable to I.D. driver.  [PL] stated he would be grounding his son because of the incident.

Lt. Wolfe testified he contacted [W] on May 12 or 13 to see if action on [W's] call made Grievant unavailable to respond in the Black Rock incident.  [W] told him no one from the Department had con­tacted her.  Lt. Wolfe initially testified he found that sur­pris­ing because of the entry in Grievant's report.  On cross examination, Lt. Wolfe acknowledged he had not yet seen Grievant's report at the time he spoke to [W], and only saw it at some point after May 16.  He testified he did not pursue the matter further in his first contact with [W] once she said she had not been contacted by an officer.

Lt. Wolfe called [W] on May 19.  [W] confirmed that she could not identify the driver, but said she could identify the passenger.  Lt. Wolfe testified Grievant's report was accu­rate in reporting [W] could not identify the driver.  However, his concern was that Grievant did not know the information was accu­rate when he wrote it.  Sheriff Ray Steele testified the report was true only in the sense that afterward Grievant learned that information.

Sheriff Steele testified the Director of Dispatch, Brenda Hostetler, checked all systems, as well as with the staff on duty on May 11.  Hostetler reportedly learned no one had passed on the information from [W's] second call to Grievant, and disciplined two staff members for this omission.  Lt. Wolfe testi­fied he reviewed one or two hours of phone logs and radio transmissions for the evening of May 11.  He found no dispatch to Grievant that evening advising him [W] could not identify the driver.  Dilts could not determine from the tapes whether Dispatch gave the information from [W's] second call to Grievant.  She testified it was impractical to scan for telephone calls because the scanning system failed to stop for some calls.  The only way to check calls would have been to listen to each phone line straight through.

Grievant testified he did not attempt to contact [W] on May 11 because he was assisting Deputy Krauger in completing a large number of reports.  He believed he attempted unsuccessfully to con­tact [W] on May 12.  He did the rest of the follow-up on the complaint on May 12, by running the vehicle license plates and contacting the owner's home.  He testified he wrote the narrative portion of his report all at once.  He did not recall how he learned [W] could not identify the driver, but believed it was from some­one at Dispatch.  He had no recollection of having that information dispatched out.  However, he calls Dispatch at times, and also has social contact with one of the dispatchers, Sue Martin.  He recalled en­coun­­tering Martin at the Department gas pumps on May 12 and talking to her then about the Black Rock inci­dent.  He did not recall whether they also discussed the reckless driving incident that day.

Grievant testified he told Sheriff Steele he may have talked to Martin.  However, he had already learned she also did not recall whether they had discussed the reckless driving incident, although she did recall talking to him at the time.  He therefore did not pursue using her as a witness.

Grievant's Interview

Lt. Wolfe met with Grievant and his Association representative for a recorded interview on May 19.  Grievant signed a document informing him the inquiry pertained to "prompt response to calls for service."  At the outset of the interview, Grievant's representative asked for the case number involved; Lt. Wolfe provided only the case number for the Black Rock incident.  Lt. Wolfe inquired into the Black Rock incident, then turned to the reckless driving incident, then returned to the Black Rock incident.

The tape recording of the interview was introduced in evidence.  Except for the opening remarks, no transcript was made of the tape; however, the Arbitrator has reviewed the tape thoroughly.

When first asked about the reckless driving incident, Grievant commented "This was a phone call that I, uh, made to the complainant--or, I attempted to make to the complainant...."  From that point on, he repeatedly said he was unable to reach [W].  At several points, he said he could not attempt to telephone [W] at the time the call was dispatched to him, because he had no cell phone with him that day.

In the interview, Grievant repeatedly described having called [AL's] number and talked to [PL], although he did not recall when he made this call.  He was certain he had called [PL] from the office, because he had no cell phone.  Department telephone records confirm that he called [PL's] residence on the evening of May 12 from the office.

During the interview, Grievant said Dispatch did not have every­thing on the CAD, but that [W] had later called in and said she could not identify the driver.  He said he had called Dispatch to report he had attempted to contact [W], but there was no answer; he said he was told she could not identify the driver.  On further inquiry, he was unable to recall when or how Dispatch gave him this information, but repeatedly com­mented Dispatch was the only way he could have gotten it.  Lt. Wolfe informed him the tele­phone and radio tapes showed Dispatch never gave him that infor­ma­tion.

Grievant eventually conceded he did not know where he got the information that [W] could not identify the driver.  He also conceded he was unsure whether that information was "the truth," since he could not recall how he got it, but that he thought he had that information.  When challenged to say with certainty whether the information was "accurate" or not, he said he would have to say no, and acknow­ledged the information he wrote could be false.  When Lt. Wolfe suggested the report that [W] could not identify the driver was inaccurate "because you don't know that for a fact," Grievant agreed.

Lt. Wolfe's recollection of the interview varied somewhat from the tape.  For example, he testified Grievant initially claimed he had called [W], and only later said he might have gotten the information from Dispatch.  He also testified that, after being told the tapes showed the information did not come from Dispatch, Grievant claimed to have called [W], and at a later point said he could not recall how he talked to her.  He also testified that Grievant claimed [W] told him she could not identify the driver.  Except for the comment quoted above, which he corrected immediately, at no point on the tape did Grievant claim to have talked to [W]; he at no point indicated [W] had told him anything.

Other Information

Sgt. D. W. Dunkin provided a report to Lt. Wolfe regarding his follow-up of [W's] report.  The report includes the fact that [W] was unable to identify the driver because of the tinted windows.  Al­though the report notes the passenger was making obscene gestures to [W], it does not include a physical description or other identifying information regarding the passenger.

                                                           POSITION OF COUNTY

The Arbitrator should reject Grievant's claim that he may have received the information about [W] from an off-duty dispatcher.  Grievant did not offer this purported excuse at any earlier stage in the grievance procedure.

The alleged lack of notice of the scope of Lt. Wolfe's questions is not a valid defense.  Grievant was told the inquiry pertained to "prompt response to calls for service."  He had union representation at the interview and had an opportunity to take a break and consult with his representative.  Finally, no contract provision requires 24 hours' notice.

Grievant was untruthful.  He did not contact [W], nor did he contact Dispatch.  He therefore had no basis in fact to say [W] could not identify the driver.  Had he contacted [W] or Dispatch, he would have learned that [W] could identify the passenger, and this information would have appeared on the report.  The discipline should be upheld.

                                                   POSITION OF THE ASSOCIATION

The County failed to establish that Grievant was untruthful.  It also failed to establish that the discipline was based on just cause and progressive discipline principles.  The County's inability to establish that Grievant was untruthful moots the issue of whether the suspension was based on just cause and pro­gressive discipline.  Grievant should be exonerated of any charge of untruthfulness, and the suspension should be rescinded with all back pay and benefits restored.

Without question, the County may discipline employees for being untruthful.  Employees are on no­tice of this.  However, Grievant had no notice he had to be able to substantiate, with physical proof, a statement in a report that by all accounts was true.  Grievant's inability to recall where he learned that information is not a basis for discipline.  Grievant's reliance on hearsay is a common practice in law en­force­ment, the legal and judicial system, and daily life.

No nexus exists with the supposed "rule," since the County is unable to specify how Grievant was untruthful.  Grievant's writing of the truthful statement has not been shown to have impaired the orderly, efficient and safe operation of the Sheriff's Office.  The follow-up and written information was exactly what the Sheriff's Office properly would expect of Grievant.

Lt. Wolfe did not conduct a full investigation.  Grievant had not yet completed following up on the report when Lt. Wolfe began his investigation.  The County failed to fully investigate how Grievant learned the truthful statement.  Although the statement was true, Lt. Wolfe concluded it was untruthful simply because Grievant could not recall how he learned the information.  The County's failure to locate Dispatch records of transmitting this information to Grievant does not establish that the statement was untruthful.  The County reviewed only communication records from May 11.  [W] made a second phone call to Dispatch on May 11.  The number of telephone lines and radio frequencies at Dispatch made it impossible for any one person to review all communications for either May 11 or May 12.  The County did not contact all dispatch employees to determine whether any of them gave the infor­ma­tion to Grievant.

The County did not conduct a fair and impartial investigation.  Lt. Wolfe acted as both the prosecutor and judge, as well as the main witness against Grievant.  Lt. Wolfe focused Grievant's attention on the "Black Rock" incident, then sneakily inquired into [W's] report.  Grievant was not concentrating on nor prepared to answer questions about [W's] report.  Lt. Wolfe was emotionally involved in backing up his decision.  Upper management acted on a "My supervisor, right or wrong" basis.

The County did not obtain substantial proof that Grievant was untruthful.  Grievant's statement was true.  Lt. Wolfe had difficulty recalling how or when he learned information about the incident from [W].  His testimony exhibited the same failing for which he disciplined Grievant.  Even with his file before him, he could not recall where or when he first saw Grievant's report and when he first spoke with [W].  By the County's standards, if Grievant's statement was untruthful, Lt. Wolfe's testimony must also be untruthful.  The County attempted to bolster its case at the arbitration hearing with information and events not previously used against Grievant.  It failed to prove that Grievant's statement was untrue.

The County has not consistently disciplined employees for conduct similar to Grievant's.  Other deputies have had similar activity and CAD reports.

Assuming arguendo that the County proved the misconduct charged, the County failed to follow the principles of progressive discipline.  The alleged offense was not serious.  According to Wolfe, the statement was true, but Grievant could not have known it was true.  The offense was minor and absurd.  Neither Lt. Wolfe nor Sheriff Steele would acknowledge that the disputed statement was true.  Since the statement was true, there is no need to examine Grievant's history.  The punishment does not fit the al­leged crime, because there was no crime.  It is ludicrous to claim that Grievant guessed at the statement and was therefore untruthful.  This subjected Grievant to arbitrary and capricious discipline.

The County engaged in a blatant and gross violation of the basic principles and theories of just cause and progressive discipline.  The lack of notice, full investigation, fairness, and proof of guilt are clear throughout the case.  As a remedy, Grievant should be exonerated, the grievance sustained, all disci­pline or reference to this grievance should be rescinded, and Grievant should be made whole for all pay and benefits for the period of the suspension.  The lack of adequate and contractual due process alone necessitates sustaining the grievance and reinstatement.

                                                                       OPINION

As the parties recognize, the County bears the burden of showing just cause for this suspension.  In determining whether the County has met this burden, the County is bound by the charges upon which it acted at the time.  The County has specifically disavowed any reliance on the sufficiency or com­plete­ness of the investigation itself as a basis for discipline.  Instead, it relies solely on the charge that Grievant's written report was untruthful.

The charge of untruthfulness includes an element of intent--that is, that Grievant included information which he knew to be false or acted out of reckless disregard for the truth.  Thus, to sustain its burden, the County must show, by clear and convincing evidence, (1) that one or more aspects of Grievant's report were false and (2) that Grievant knew, or reasonably should have known, of the falsity.

Grievant's report accurately stated that [W] could not identify the driver.  [W] repeated that information to Lt. Wolfe, and the information also appears in Sgt. Dunkin's report.  While Grievant's report did not go on to say that [W] could describe the passenger, that is a matter of completeness, not truth­ful­ness.  In any event, it is unclear on this record whether that additional information came in [W's] second phone call to Dispatch, or only in her later contacts with Lt. Wolfe.  No dispute exists that the remainder of Grievant's report accurately described his contact with [PL].  Thus, Grievant's written report was, in fact, truthful.  The concern over his inability to substantiate the source of some the information goes to the adequacy of his documentation of the investigation, not the truthfulness of his report.  Indeed, having concluded that the report was truthful, the source of that information is irrelevant for purposes of this proceeding.

Accordingly, on this record, the County has not shown that Grievant's report was untruthful in any respect.  It is therefore concluded that the suspension was not for just cause.  This conclusion makes it unnecessary to determine whether, if cause for discipline had been shown, the suspension would have been consistent with progressive discipline.  Absent a showing of just cause, no discipline was warranted.

The parties stipulated that, in the event the Union prevailed on the merits, the Arbitrator would retain jurisdiction over the remedy and any disputes arising therefrom.  The remedy aspect of this matter is therefore remanded to the parties for resolution.  The Arbitrator will retain jurisdiction in the event the parties are unable to agree on an appropriate remedy.

                                                                       AWARD 

The imposition of discipline was not for just cause.  The remedial aspect of this matter is remanded to the parties for resolution.  The Arbitrator retains jurisdiction over any disputes regarding the appropriate remedy.

 

DATED:  May 29, 1996

 

 

                                                                          

   LUELLA E. NELSON - Arbitrator

 

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