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Title: Reno Police Protective Association and City of Reno
Date: December 23, 1997
Arbitrator: David Robinson
Citation: 1997 NAC 123

FMCS CASE NO. 97-21191 CSR #2

FEDERAL MEDIATION AND CONCILIATION SERVICE ARBITRATION

RENO POLICE PROTECTIVE                           ) In Re: Marsh Transfer

ASSOCIATION (The Association),                     )

            and                                                             )

CITY OF RENO (The City).                                  )   Arbitrator:  David K. Robinson, J.D.

_________________________________     )  

DATE AND PLACE OF HEARING

October 23 and 24, 1997; City of Reno Office Building, Reno, Nevada

APPEARANCES

RPPA (The Association)

Michael E. Langton, Esq.
Langton & Yenko
801 Riverside Drive
Reno, NV 89503

City of Reno

Rick Gonzales, Esq., Labor Relations Officer
City of Reno
490 South Center Street
PO Box 2900
Reno, NV 89505

WITNESSES

For the Association

Officer Lanny E. Marsh; Sergeant Joseph C. Butterman; Sergeant Christopher B. Lange, Officer Gregory John Meister; Officer Pam S. Cercek, Sergeant Karl B. Schmidt

For the City

Detective Ronald Phillip Dreher; Deputy Chief (“D. C.”)  James D. Weston; Lieutenant James  (Jim) D. Ballard, Deputy Chief Thomas William Robinson IV

////

DOCUMENTARY EXHIBITS RECEIVED INTO EVIDENCE

(See Appendix: Documentary Evidence Received)

I. ISSUE FOR RESOLUTION

WHETHER THE DENIAL OF RPD LANNY MARSH’S APPLICATION FOR THE DUI[1] ENFORCEMENT POSITION CONSTITUTED A VIOLATION OF ARTICLE NO. 5 OF THE LABOR AGREEMENT BETWEEN THE RENO POLICE PROTECTIVE ASSOCIATION AND THE CITY OF RENO?

IF YES, WHAT SHALL BE THE APPROPRIATE REMEDY?

II.  RELEVANT CONTRACT PROVISIONS

See: Collective Bargaining (Labor) Agreement (“CBA”), October 1,1994 - June 30, 1997 between City of Reno and Reno Police Protective Association.

ARTICLE NO. 5.  NON-DISCRIMINATION

.  .  .

            (c)        The provisions of this Agreement shall be applied equally to all employees in the negotiating unit, without discrimination as to age, sex, marital status, race, color, creed, national origin, or political affiliation.  The Association shall share equally with the City the responsibility for applying this provision of the Agreement.

III. CONTENTIONS OF THE PARTIES

The Association.  The Grievant, Officer Larry Marsh, is a Reno City Police Officer with 21 years experience.  There are only two DUI (“Driving Under Influence”) enforcement officer positions in the Department.  Five officers were in the final ranking after the process of application and interviewing was finished by 2 assigned command officers. One position was to be filled in July 1997 and the second will open in January 1998.  The selection process, as it evolved was actually for both positions.  The 2 successful applicants had each been on the Reno Police Force for approximately 2 years.  Officer Marsh was far more qualified than either of the successful 2, has been on the Reno Police Department (“RPD”) for more than 20 years or met all the enumerated criteria. 

Officer Marsh was discriminated against in the selection process in at least 2 ways:  (1) retaliation for his being a long time representative of the Association in representing other officers when he was requested by them to be their RPPA representative in the other officers’ disputes with the Reno Police Department; and (2) because of his age.  Officer Marsh is over 40 years of age and the oldest of the finalists.  Lieutenant Ballard Robinson was heard to say that a “younger officer” would get the position in the DUI enforcement.  D. C. Robinson has expressed his view that younger officers should apply for positions to give other younger officers knowledge that opportunities are there.

The arbitrator should find The City in violation; require that Officer Marsh be awarded the position he should have received in July or, alternatively moved ahead of the second selected person and be placed in the second DUI enforcement position as it becomes open in 1998.  Further, the arbitrator should award monetary relief to make the Grievant whole.

The City of Reno.  There was no discrimination.  The selection process for DUI enforcement officer was consistent, fair, and nondiscriminatory.  The Grievant’s motivation for the grievance was his desire to make more money until his retirement in about 3 more years.  The grievant was trying to pad his retirement benefits.  Two sergeants made the oral interviews of all applicants.  After the sergeants had met and made preliminary assessments, they met next with the Lieutenant in charge of Traffic and the Deputy Chief of Police.  As a group of 4 commanders, the group came to a consensus that 2 officers, not including Lanny Marsh were to be selected.  The City has the reserved right not only as expressed in the Collective Bargaining Agreement (“CBA”) but also arising in Nevada law NRS 288 (Relations Between Government and Public Employees) to assign employees, subject to certain limitations.  One limitation is that there be no discrimination.  The City chose not to assign the Grievant to the one July 1997 opening for a DUI enforcement officer and chose to select another officer to fill the position to be open in early 1998.  Discrimination cannot be established.  The grievance should be denied.

IV.  SUMMARY OF EVIDENCE AND TESTIMONY

Officer and Grievant Larry E. Marsh testified

            He was born on February 26, 1951 and was 46 years of age at the time the July 1997 opening for DUI enforcement he had applied for was filled. 

            He has been a regular duty Police Officer since August 15, 1997.  In his 20 year plus career, he has made approximately 200 DUI arrests and has participated in several hundred other arrests.  He has trained junior officers in making DUI arrests.  He is the most senior field-training officer in the Department at this time.  He has worked closely with Greg Meister, one of the presently serving DUI enforcement Officers and with Scott Dugan, the successful applicant for the July 1997 opening as DUI enforcement officer.  He is a drug recognition expert; has experience in forfeiture actions; and has worked undercover in the Washoe County Consolidated Narcotics unit.

            As to assignments, he has 2 tours of duty in undercover narcotics operations (about 4 years; has been assigned twice to the Detective Bureau (now called Investigative Services Bureau).  As a detective, he has worked juvenile, fraud, pawn detail, and 2 tours in major crimes.  For a time he was a member of the elite SWAT team.  He has attended a 2-week motorcycle qualification course.

            Officer Marsh testified that throughout his career his evaluation reveal that he is a highly qualified, respected officer and has a good work ethic.  (See Association Exhibits A-1 and A-2).  He testified that he met all the criteria published to be necessary for consideration to be assigned to be a DUI enforcement officer.

            He applied for the transfer to make more money.  He knew that one of the DUI enforcement Officers made about $93,000 last year, far more than the approximately $50,000 he made.  Inasmuch as Officer Marsh will be retiring in about 3 years, he wanted the extra income to enhance his retirement income under the State of Nevada’s Retirement Benefits Package.  He is prepared to commit whatever the number of years required to the DUI officer position, either for 3 or 4 years (the 3 year increment plus 1 extra year if based on evaluation by the immediate supervisor).

            When the announcement (Exhibit J-4) of the opening was made, he sent a memorandum to Lt. Ballard indicating his interest.

            Sergeants Butterman and Schmidt then interviewed him.  At that time, both sergeants held the same titles: sergeants in charge of the traffic division and subordinate to Lieutenant Ballard.  Their duties included supervising all other functioning and working officers in the traffic division, the standard accident investigators, the motor officers and the DUI enforcement officers.  The 2 questions asked by the sergeants were why he wanted the assignment and what could he bring to the assignment.  The actual interview lasted a couple of minutes.  The 3 talked for a while.  All 3 have known each other for 24 or 25 years as fellow officers.  He frankly told them that he was planning to retire in about 3 to 3 1/2 years and wanted the extra money he could make to enhance his retirement package.  Each of the interviewers was rapidly approaching retirement too.  Officer Marsh told them about his experience, training, and qualifications in answer to what he would bring to the job.  He understood he was the first of the 5 or 6 to be interviewed    He has worked with both sergeants.  He testified that both officers, during that interview meeting, indicated to him that he would be their choice.

            During the interview, Sgt. Butterman asked Lanny Marsh how he got along with Deputy Chief Robinson.  Marsh made it known he thought “not too well” because of his [Marsh’s] representation through Reno Police Protective Association (“RPPA”) of officers in disciplinary proceedings.  Sgt. Butterman later met with D. C. Robinson.  According to Butterman D. C. Robinson told him that he [Robinson] thought Officer Pam Cercek and Lanny Marsh were out to get Sgt. Foley for discrimination and harassment.  Until then, Sgt. Butterman was not aware that Lanny, for RPPA, represented Cercek.  This interview between Sergeant Butterman and D. C. Robinson was 4 or 5 days after Marsh’s oral interview with Sergeants.  Butterman and Schmidt.  In addition to being a representative in hearings, Officer Marsh has been a Member of Board of Directors of the RPPA (Discipline and Discharge Director).

            In conversations some time later, Sergeants Butterman and Schmidt related to the Grievant that the substance of their meeting at the Nevada National Guard Armory (D. C. Robinson is an officer in the NNG) among themselves plus Lieutenant Ballard and D. C. Robinson.  This meeting became referred to as “the airport meeting or the consensus meeting.”  Sgt. Butterman, a past president of the RPPA made it clear, he said, at the outset that Officer Marsh’s relationship with RPPA would not be considered or discussed as to the DUI enforcement position.  Officer Marsh has represented more than 100 officers in discipline and termination matters for RPPA during his experience.

After oral interviews with all the other applicants had been completed, both Sergeants, Butterman and Schmidt again confirmed to Officer Marsh that he was their choice.

            From both Officer Meister, an incumbent DUI enforcement officer and from Sgt. Schmidt Officer Marsh heard that they believed that Lt. Ballard wanted to go with a “younger officer.”

            Officer Marsh was never told by management why he did not get the position or of any weaknesses in his application.  Officer Marsh has not been provided with suggestions on how to improve himself for future applications.  Notification of both matters by the division/unit commanders is required under General Order 4/760.000 (July 17, 1996), D.4.  (Exhibit J-11),

            Officer Marsh had several conversations with incumbent DUI enforcement Officer Greg Meister before he applied and after the oral interviews had been completed (late April and early May 1997).

            Officer Marsh acknowledged that as a Discipline and Discharge Officer for RPPA he and some of the command/administrative staff were adversarial and sometimes agreed to disagree.  In his adversarial role as Representative, he has encountered Deputy Chiefs Johns, Robinson, Weston and Glensor and Lieutenant Gibson.  Yes, he acknowledged, he could work Professionally with each of them.  He served under the command of D. C. Robinson in the patrol division for about 2 years in the late 80s or early 90s.

            During one of the appeal hearings (a step in the grievance process), Officer Marsh was told by D. C. Robinson that he was not qualified to be the DUI officer.  He had never before been told he was not qualified and did rank number 3 on the list of 5 (Exhibit J-7).

            Marsh has worked with Lt. Ballard from time to time over the period of their careers.  At one point, Lt. Ballard was his supervisor in the patrol division.  About 1 year ago, he told Lt. Ballard that he had no interest in Traffic but that the way DUI is run today it is separate although still under Traffic.  Officer Marsh was aware that incumbent DUI Officer Meister was making $93,000 per year at the time he [Officer Marsh] told Lt. Ballard he wasn’t interested in Traffic.

            When cross examined about Exhibit J-3 (the Grievance letter), Officer Marsh testified that the reasons he wanted the DUI job ranked in order of importance (first being most important), he listed (1) to enhance his retirement; (2) safety for the citizens of this city; (3) removing DUI violators from the streets of our community; and (4) his ability to get the job done.

            When questioned about money as the primary motivation, Officer Marsh acknowledged the concept that the more arrests the DUI officer makes, the more money he could make.  Yes, the police officer has discretion but as long as the arrests are quality arrests he has no problem    Both Sergeants Schmidt and Butterman had raised the money issue with him since he made clear it was an important factor.  The extra money, Officer Marsh testified comes not from the number of arrests but from court time, court standby time and court appearance time.  Bad arrests are held against the officer making them.

            He acknowledged on cross that when the term “younger man” was used, he assumed it to be younger in age not younger in terms of time with the Department.

            He acknowledged that in the past he had voiced concerns about having to arrest another police officer for DUI or any other charge.  He remembered the issue coming up at a shift briefing about 6 to 8 years ago.  He believes that Lt. Ballard was at the briefing.  But, he testified, he would follow the policy and procedure as set forth by the Reno Police Department and the protocol that is established and he would make the arrest.

During his second rotation in “CNU” (Combined Narcotics Unit), Officer Marsh voluntarily left the unit.  He left the unit after Lieutenant Tim Goyo came to Officer Marsh and told him that he had received information that Marsh’s younger brother was involved in use and sales of controlled substances.  Officer Marsh confronted his who admitted the charge and then went with his brother to his brother’s employer and had his brother placed on a 30-day in-house rehabilitation program at St. Mary’s Hospital.  When questioned if his action may have impeded an ongoing investigation, he acknowledged it might have.  He insisted his conduct was good judgment.

            The DUI enforcement officer position has been a specialized position at the Reno Police Department (“RPD”) for 5 or 6 years according to Mr. Marsh.  During that time 3 or 4 openings have occurred.

Sergeant Joseph C. Butterman testified

            Sergeant Butterman retired in June 1997 after 27 years.  At the time of his retirement, he was assigned to the traffic division.  He has known Lanny Marsh since he was an auxiliary officer for 20 to 25 years.  He considers Officer Marsh, Lt. Ballard, and D. C. Robinson as friends.

            He and Sergeant Schmidt were the only 2 who did oral interviews for the DUI enforcement officer selection in 1997.  As the only 2 sergeants, they do the interviews for special assignments.  He related that they told the interviewees the interview was not going to be a technical sort of analysis or we weren’t going to ask trick questions.  We were going to get a feel for whom they were and where they wanted to go.  We asked them very general questions about their career goals, their desire to work in Traffic, whether the assignment would negatively impact the persons lives and those sorts of things.”  At the end of the interview process, this witness’s first choice was Officer Marsh and Sergeant Schmidt expressed that choice too.  He was a partisan of Lanny Marsh’s candidature based upon his past performance of his duties.

            It was important, he thought, that the candidate be recommended by his supervisor.  He cannot remember if any of the finalists had not been recommended by his supervisor.  Sgt. Butterman visited with D. C. Robinson at least twice a day on his [Butterman’s] workdays.  D. C. Robinson would usually lecture him, in a friendly way, about the candidate that he favored for any position and we would go back and forth about Marsh.  Sergeant Butterman began then to sense that there was a deeper concern.  Sgt. Butterman attempted to set up a meeting between Marsh and D. C. Robinson before May 28, 1997 but D. C. Robinson did not want to meet.  Sergeant Butterman recalls saying to Officer Marsh “you hit the nail on the head.”  The Cercek issue was then a divisive issue with the Police Department and the Sheriff’s Office.  The conversations involving Officer Cercek between the Witness and D. C. Robinson went on from ‘ Octoberish” of last year to the end of the selection process at issue.

            We asked all applicants, “Would this position cause you undue hardship in your private life?”  The question was asked because its an open secret[2], he said, that whereas 10 years or so ago, we would have 4 or 6 and before that even more DUI officers on the street and now we have 2.  Since they work nights on DUI they serve much of their off duty time in Justice Court, Reno Municipal Court, DMV hearings or some other procedure during the day time.

            Yes, he testified, during the selection process, D. C. Robinson indicated to him that he [D. C. Robinson] wanted to insert a younger officer.  He does not think that age was a factor in Lanny Marsh not getting assigned since he was not a “spring chicken” when Chief Robinson selected him for the division and Sergeant Schmidt was not a spring chicken when he was selected.  Retired Sgt. Butterman testified that he saw nobody on the list that was as capable as Officer Marsh or had as distinguished a record.

            Chief Robinson is a polished professional.  The likelihood of his saying to a person something blatantly discriminatory was zero.

            As to the final ranking of Dugan was 1, Sheffield was 2, and Marsh was 3.  The final ranking was arrived at by a consensus of 4 people, the 2 sergeants who interviewed and Lt. Ballard and D. C. Robinson.[3] Certainly, he said, one person would have more “input and that was based on rank.”  The sergeant’s input would have less strength than the Lieutenant’s and the Lieutenant’s less than the D. C.s. Ultimately it would be the D. C. ‘s responsibility to make the ranking and the decision.  He said he never changed his position as to Officer Marsh’s being the most qualified but that he joined in making the final ranking as Dugan, Sheffield, and Marsh.  When asked why he did that, he said:

Because we stated our case in what we conceive to be the best interest of the division and the department.  In the appropriate forum, the decision is made and we soldier on.  In fact, that I didn’t agree with it does not alter its legitimacy anything else, and I’m certainly -- and no, I did not tip the table over or rant and rave and carry on.

            Sergeant Butterman said it would be fair to say he agreed to the final ranking because it was obvious by that point in the consensus meeting that Lanny didn’t have a chance for the position.  Lt. Ballard was the most vocal against Officer Marsh noting that he was not previously interested in Traffic.  Negatives against others were discussed too.  There was concern that Dugan and Sheffield had done so few DUI arrests.  As to the issue of money, there was no derogatory comment about any of the others but significant discussion about Marsh’s wanting the money to enhance his retirement.  Sergeant Butterman testified that his opinion has never changed and that Officer Marsh was the most qualified for the position.

            On cross-examination, he acknowledged that his second choice was Dugan and then Sheffield.  As he remembers, that ranking was the same for Sergeant Schmidt.  Officer Dugan impressed them with his presentation of himself in the interview.  Neither interviewer had ever seen Officer Dugan before.

            When questioned about any guidance from higher command officers (Ballard and Robinson) about the general direction of the oral interviews, he replied that we ask the same set of general questions and then that we met with them [Lt. Ballard and D. C. Robinson] and provided a recommendation.

            As to the airport meeting (consensus meeting), he does not remember how Officer Sheffield became ranked as number 2.  He disagreed with ranking Sheffield higher than Officer Marsh.  When asked about the lack of recommendation by Sheffield’s supervisor, he said, he couldn’t remember whether it was Green or Sheffield about whom there was that concern.”

            The witness said that in his opinion the overall selection process was fair, applied fairly and applied equally.

            Sergeant Butterman discussed the differences in Traffic assignments.

Deputy Chief James D. Weston testified 

            He was the acting Chief of Police at the time the DUI enforcement officer position opened up in 1997. 

            The process worked as follows: oral interviews with 6 candidates; consensus meeting (airport meeting); and then to upper command staff level.  During his tenure as Acting Chief, he created a process that required every division commander (deputy chief) to bring in any transfer assignment recommendation before the 5 or 6 deputy police chiefs so that all had a chance to listen to the ranking and offer any concerns about the transfer process, to avoid favoritism, and to give every one of the command officers a final input in the selection.  The Deputy Chief involved brings in the rankings on the list, presents them, and asks for comments, objections, suggestions, or issues. Chief Weston recalls that there was little discussion and certainly no discussion about Officer Marsh’s age or his involvement with RPPA.  He testified he was not aware that Officer Dugan had only 2 DUI arrests at the time his application was made, the number of DUI arrests Officer Sheffield had made or whether Officer Sheffield was or was not recommended for the position by his supervisor.  He said he would probably not be concerned if Officer Sheffield had been ranked number two and was not recommended by his supervisor.

            Exhibit J-11 (Reno Police Department General Order), at D 3 at page 2 was shown to Chief Weston.  There it stares that seniority will be considered as long as the applicant demonstrates an ability and competence to do the job.  When asked if all other elements were equal, would the most senior person get the assignment?  Chief Weston answered:

            That would be a valid criterion if all other positions or -- both candidates were equal in all other fashions as far as we can determine, and I would have no objection using seniority as the selecting fact to break that draw . . .  .  .

            In reviewing D. 4 of Exhibit J-11 (the responsibility of the division/unit commander to notify an unsuccessful applicant of any weakness found and provide suggestions of how to improve for future applications, Chief Weston testified that the directive should be followed.

            When asked about the Dugan, Sheffield, and Marsh rankings, Dugan being highest, the Chief acknowledged that Officer Marsh was a good officer and that he had known him for about 20 years.  When asked if he knew the qualifications of Dugan he acknowledged “not particularly” and when asked about Officer Sheffield that he knew even less about Sheffield.  When asked if he expressed any concern in the Deputy Chief’s meeting why a 2-year officer such as Dugan would be ranked higher than a 20-year officer he knew to be a good officer, he answered:

I don’t recall asking any questions like that.  I may have.  I just -- I don’t recall talking about it.  I normally do not get involved in the division matters, make those selections through the review process, and I’ll leave that to them.  I don’t get involved in it.  I just don’t have time.

            When asked to articulate what Lieutenant Ballard relayed to him as to reasons for ranking Dugan and Sheffield higher than Marsh, he replied:

The only thing I can recall is that he said from his assessment, from the oral interview and the information they gathered, was they felt Dugan would be more productive based on the information they collected through the interview process.  I don’t know how they exactly formulate that, but they [the supervisors] are paid to do that and make those decisions.

            When asked the reasons D. C. Robinson may have given for ranking Dugan and Sheffield higher than Marsh, he replied:

He did not feel that Marsh was an outstanding officer in the perspective of being very productive in his job in the future.  He was very concerned -- and Ballard also -- about comments they claim that Lanny had made about wanting the job primarily  -- the primary motivation was to earn the overtime that could get to near retirement age so you could boost your retirement income, and he felt that was not a proper criteria or proper motivating factor for an officer to want that job.  . .  [A]nother issue that I did recall just from yesterday, for example, was that they felt that less than a year ago - - or a little over a year ago, Lanny made a statement he did not want to work Traffic; he had no interest in that kind of assignment.

            He acknowledged that he did not know whether the comment was attributed to Lanny as to working DUI enforcement or working traffic.

            As to making extra money, if money is the goal and there’s overtime to be made, it can be very dangerous if you look for the last minute DUI to make.  He acknowledged that a DUI officer should not just go out, arrest anybody, and charge a person with DUI, that you should have probable cause and there should be a good arrest.  Yes, he acknowledged in the event a DUI officer did not make good arrests that sooner or later he would be negatively evaluated.

Sergeant Christopher B. Lange testified

            He has been with the Reno Police Department for nearly 13 years and currently is assigned to the Community Action Team where he has been assigned for 16 months.  He supervised Officer Sheffield.  Officer Sheffield asked him for a recommendation for the position of DUI enforcement officer.  He did not give the recommendation.  Officer Sheffield was unacceptable in completed work.  “I didn’t think he was prepared or ready to be given a special assignment.”  Sergeant Lange was Sheffield’s direct supervisor for approximately 1 year.  When questioned by Lt. Ballard, he told him about Sheffield’s deficiencies as he saw them and told him that Sheffield was a big producer of a lot of DUIs.  I had to counsel him [Sheffield], Sergeant Lange said, about doing DUIs toward the end of the shift several times where it would roll into overtime.  “On two occasions when I ended my shift he would be having a DUI unit handle the matter but I found out later that he [Officer Sheffield] handled it.  I felt he was handling it based on obtaining overtime.”

            When asked if a recommendation must be in writing he affirmed he thought so.  He did not specifically tell Lt. Ballard, when asked, if he would endorse Sheffield but just described his abilities and his deficiencies.  Sergeant Lange testified that Sheffield was aggressive in making DUI arrests, DUI contacts, traffic stops, but that he has a real problem in writing reports.  If you go to court, the Sergeant said, and don’t’ have accurate information in your reports you would be graded very harshly.  He further noted that Sheffield has no problem with a straight on situation without any confusion or problems but if there were a difficult, individual he is going to have a problem. 

            He can’t remember whether he talked to Sergeant Schmidt about Officer Sheffield but does remember talking to Sergeant Butterman.  The witness made it clear to Sergeant Butterman that he was not endorsing Sheffield and for the same reasons he told Lieutenant Ballard.  I thought I made it clear to Lt. Ballard that I was not endorsing Officer Sheffield.

Sergeant Karl F. Schmidt testified

            He has been with RPD for 28 years plus and a sergeant for 18 years.  For 2.5 years, he has been Traffic Supervisor, Sergeant, Motorcycles.  He has known Lanny Marsh for almost the entire time Officer Marsh has been with RPD.

            Sergeant Butterman and Sergeant Schmidt were the only interviewers of the 6 candidates.  No papers were reviewed for the process except for the applications.  Applications were informal such as a memo or an e-mail.

            Before the interview process, he did not know Officers Dugan, Sheffield or Yawn.  He was familiar with the qualifications of and knew Officers Will Yawn and Sam Birchill.

            At the end of the interview process, Sergeant Schmidt felt both Officers Marsh and Dugan were equally qualified.  He told Sergeant Butterman that he was torn between the 2.  Since, nothing has changed his mind.  But at the end of the interviews he thought Officer Marsh was more qualified that Officer Sheffield.

            No, there was no direction as to how to conduct the interview process but I have conducted them before.  But, he said, this was the first time for an interview for DUI enforcement officer. 

            Sergeant Schmidt supervises Officer Meister, one of the two incumbent DUI enforcement officers.[4]

            Sergeant Schmidt may have talked with Officer Marsh concerning the selection process and younger officers.  It’s a fact, Sergeant Schmidt testified, that D. C. Robinson talked about having new blood brought into the section and that D. C. Robinson expressed that one of his desires is to get younger officers to show the rest of the younger officers that there is room for advancement for them and just because they have low tenure in the department shouldn’t hold them back from applying for different positions.  Sergeant Schmidt cannot recall having a similar discussion with Lt. Ballard.

            He did speak to both Lt. Ballard and D. C. Robinson about Officer Marsh’s concern that his being a representative for the RPPA may hold him back.  Sergeant Schmidt was assured that representation would have nothing to do with the selection process.

            Sergeant Schmidt was asked about the airport meeting (consensus meeting).  All he can recall Lt. Ballard saying was that he had a feeling that maybe Officer Marsh would not arrest another law enforcement officer if the officer were stopped for possible DUI.  Lt. Ballard expressed that feeling only about Officer Marsh.  The protocol a DUI officer is expected to follow in such a case, that is to get the supervisor or watch commander working on it.  But the Officer is expected to make the arrest.  Officer Schmidt still feels that Officer Marsh would be unwilling to make a DUI arrest of another officer whereas Officer Dugan would be willing.  Lt. Ballard was in favor of Officer Marsh to the point that he was -- knew he would be qualified and do a good job

            He doesn’t remember D. C. Robinson’s making any comments about Officer Marsh

            The issue of seniority never came up at the consensus meeting.  He does not recall Sergeant Butterman’s saying anything in the meeting about Officer Marsh’s representation of other officers was not an issue.

            DUI Enforcement Officer Meister’s’ rotation is to occur.  Officer Sheffield has been selected to replace him in January 1998.  Sergeant Schmidt has no idea why there has not been another application process but believes it is because it has been only 6 months since we last went through the procedure.

            Sergeant Schmidt thinks it was just an oversight that Office Brittle’s name was left off the ranking.  He remembers D. C. Robinson sending an e-mail memo to Officer Birchill apologizing for leaving him off the published list.  He remembers seeing the E-mail memo.  In the airport meeting, Officer Birchill was ranked sixth.

            Sergeant Schmidt thought Officer Marsh’s only reason for wanting the job was for overtime court time to enhance his retirement.  He believes all officers are aware that DUI enforcement officer is a high-paying job.  No, he did not ask any of the other 5 candidates if money was a motivating factor for their application.  That is not one of the questions I would ask anybody, Sergeant Schmidt testified.  Officer Marsh told me a month or a month and a half before and was forthright about the money.  Sgt. Schmidt testified that money as a motivating factor should not be held against him [Marsh].

Officer Gregory John Meister testified.

            Officer Meister has been with the RPD almost 9 years and has held the position of DUI law enforcement officer since June of 1994.  He was awarded the position after expressing his interest after reading a notice on the bulletin board (Exhibit J-9, Lieutenant Bunker’s Interoffice Memo of March 4, 1994).

            In 1994, there were 6 applicants.  He had no oral interview.  Two officers were successful, Kevin McMillin and the witness, Officer Meister.  Officer McMillin was rotated out in June 1997 and was replaced by Officer Dugan after the summer 1997 oral interviews and assignment.

            Officer Meister testified that according to a computer tracking system he has made 1,059 DUI arrests in the last 3 years.

            Officer Meister was assigned by Lieutenant Ballard to work directly with Officer Dugan and to evaluate and train him.  Officer Dugan explained to Officer Meister that he was lost when Meister interviewed him as to his knowledge of DUI.  Officer Dugan had no idea how to grade to perform a field test, grade the test, and was not familiar with the RPD field test form.  Officer Dugan had done only 2 DUIs before and then there were senior officers assisting and another officer actually performing the evidentiary test.  Officer Meister retrained him from beginning to end, supervised him in doing some DUIs and then let him go.

            During the summer 1997 selection process for the new DUI enforcement officers, Officer Meister was asked by Lieutenant Ballard to give his recommendation as to the candidates on the list.  Officer Meister recommended Officer Marsh based on Officer Marsh’s overall experience and performance in the field.  He expressed his recommendation to Lieutenant Ballard and to Sergeant’s Butterman and Schmidt.  Sergeant Butterman had called Officer Meister for his comments and recommendations.  Officer Meister met with Sergeant Schmidt on the matter in Sergeant Schmidt’s office.  Of the 6 candidates discussed with Lieutenant Ballard, he recommended Marsh first, Yawn second and Birchill third.  While Lieutenant Ballard was friendly about it, he told Officer Meister that he [Ballard] didn’t believe Marsh would get the position and that he [Meister] should not count on the fact that he [Marsh] was more qualified to expect him to get the position.  Lieutenant Ballard said to Officer Meister, according to Officer Meister’s testimony that "they were looking for somebody younger than Officer Marsh to fill the slot."  Officer Meister specifically commented that Lieutenant Ballard said, “it was younger as to age.” 

            Had Officer Marsh been selected, Officer Meister thought his training need be only for one night to orient him to the equipment, the video equipment in the vehicle going over the field test, making sure any questions by Marsh were answered.  Officer Meister has worked with Officer Marsh 8 times since he [Meister] has held the DUI enforcement position and took over the scene from him.

            Officer Meister will rotate out in January 1998.  A memo sent out by Lt. Ballard last week (week beginning October 12, 1997) announced that Officer Sheffield would replace him according to Officer Meister.

            While working with Officer Dugan, Officer Meister noted that Officer Dugan has some problems.  Dugan is hesitant to make arrests.  Dugan has called me at home on my days off to ask questions.  Dugan has called Officer Meister to a scene to assist him and there have been numerous other incidents.  In early July two breath test were improperly done.  Officer Meister advised him not to take the 2 tests to trial because the documentation was not there.  Officer Meister reported the 2 matters to the City attorney.  Officer Meister did not expect an officer who was selected for the DUI enforcement position make the type and number of mistakes that Officer Dugan has.

            On cross-examination, Officer Meister acknowledged that Officer Marsh is a work related friend but not a social friend outside of work.  Officer Meister has worked before with Officers green, Sheffield, Yawn, and Dugan before the summer’s 1997 selection process.  Officer Meister acknowledged that he too made some mistakes early on when he was assigned as DUI enforcement officer.  Although he was asked by others applicants for recommendations, the only 2 recommendations he made were for Officers Marsh and Yawn.  He had recommended against 3 on the list and didn’t want to make personal recommendations for them when he was telling the supervisor not to take them. 

Officer Pam S. Cercek testified

            Officer Cercek has been with RPD for 17 years and is presently in the patrol division.  She has had 3 special assignments in sex crimes, training, and in the Consolidated Narcotics Unit.  She has known Officer Marsh for about 20 years.  As RPPA Representative, he presently represents her in a matter against a male officer.

            She does not recall ever having worked under the command of D. C. Robinson in any of his capacities, sergeant, lieutenant, captain, or D. C.  She knows and has dated D. C. Robinson’s son, Officer Robinson.  She had bet Officer Robinson a steak dinner that D. C. Robinson did not like her.  After Officer Robinson told D. C. Robinson he was dating Pam Cercek, Officer Cercek won the bet (and enjoyed the steak dinner at Officer Robinson’s expense).

Lieutenant Jim (James) D. Ballard testified

            As a lieutenant, he has assigned to the traffic division for 2 years and several months.  He has been in command positions for the last 7 years, 2 as a sergeant, and the last 5 as lieutenant.  He was involved in a portion of the selection process for DUI enforcement officer and approved and authorized the Inter Office Memo (Exhibit J-4) of May 5, 1997 announcing the opening of the DUI enforcement officer position.  The Memo was put together by Sergeant Butterman (published as “from Lt. Jim Ballard, Operations Support”).

            Lt. Ballard was graveyard watch commander 3.5 years ago.  Officer Marsh worked on that shift.  At a shift briefing 3 to 3.5 years ago (Officer Marsh in his testimony reels that time as 6 to 8 years ago), there was conversation about an NHP (Nevada Highway Patrolman) who was involved in a DUI.  In effect, Officer Marsh said, ” We need to be careful, to look out for each other, take care of one another and that “it is a difficult job.”  Lt. Ballard said that he had to explain then that we must treat that person as we would treat any civilian and arrest under the criminal process.

            About 1 to 1.5 years ago, in a conversation with Officer Marsh while he [Lt. Ballard] was downstairs preparing for a meeting, he said to Officer Marsh “Gee, Lanny, when are you going to come upstairs and work for me in Traffic?”  Lanny said, “Jim, traffic has never been something I’ve been interested in.  I’ve never done it so far and I’m not going to do it.  Just not something I’m interested in.”

            Lt. Ballard corroborated the nature of the selection process enunciated in Officer Weston’s testimony.

            Sometime during the process after the memo was posted (Exhibit J-4), Officer Marsh came to me indicating he was concerned that D. C. Robinson didn’t like him.  I suggested he talk to the Deputy Chief himself.

            Addressing himself to the “Airport” or “Consensus Meeting,” he recalls that both Sergeant Butterman and Sergeant Schmidt had Marsh and Dugan rated as numbers 1 and 2.  After the two sergeants spoke and it came his turn.  Lieutenant Ballard voiced his concern about Lanny Marsh not wanting traffic before and his money motivation.  I was concerned too about the difficult decision of perhaps arresting fellow officers.  Then the ranking shifted among them all to Dugan first, Sheffield second, and Marsh third.  Lieutenant Ballard confirmed that he was the most vocal in opposition to Lanny Marsh.

            There was no discussion at the airport meeting about age or about Lanny Marsh’s RPPA representation duties or work.

            Neither Assistant City Prosecutor nor the Assistant District Attorney prosecuting DUI have complained about Officer Dugan’s performance in DUI.  Officer Meister has complained.

            When questioned on cross examination Lieutenant Ballard said he did not recall how many DUIs Dugan had done before his selection or how many Marsh had done before the summer 1997 interview process began.  Lieutenant Ballard testified that Lanny Marsh is one of the finest officers in the department.  While the DUI enforcement officer is not an area I would recommend him for, I would for others.  Yes, he acknowledged people’s attitudes change over time.  Lieutenant Ballard admitted he did not ask Officer Marsh about his present attitude toward arresting other law enforcement at the time of the summer 1997 selection process.  There is a policy of the RPD about arresting other officers.  Lt. Ballard never asked him if he would follow the policy.

            He acknowledged that Officer Cercek was arrested by NHP for a one car DUI.  Officer Marsh is representing her in an entirely unrelated matter.  Lt. Ballard did not ask Officer Marsh about his thoughts on Cercek’s arrest.

            Lt. Ballard denies making the statement to Meister, “Don’t count on it, we’re going to go with someone younger.”  “Younger” he explained “specifically indicates or means in terms of tenure.  You could have an older officer in terms of age, but an officer that has been here two or three, years --.”

            Lt. Ballard admitted not reviewing any documents concerning any of the summer 1997 applicants.  He based his opinion on Dugan’s and Sheffield’s being more qualified than Marsh upon what the Sergeant’s had told him.  He depended, on the Sergeants when arguing that Dugan was more qualified than Marsh.  Sheffield became number 2 to Lieutenant Ballard when he considered that Officer Marsh’s purpose in applying was for the extra money, that Marsh had no prior motivation for traffic, and because he was concerned about Marsh’s statement a few years back about arresting other officers.

            Lieutenant Ballard acknowledged that no officer gets a commission on how may arrests he makes.  The extra money comes from court time and DMV hearings.  Lt. Ballard acknowledged that if arrests were too close or something inappropriate were going on, it would be held against the officer.  He admitted making his negative views about Officer Marsh clear to the two sergeants at the consensus meeting.

            During cross-examination, Lt. Ballard acknowledged that general order procedures are expected to be followed “to the best of everybody’s ability.”

            Lt. Ballard distinguished between “working traffic” and “DUI enforcement.”  DUI sometimes focuses specifically on going out, finding, and arresting offenders.  DUI involves taking a suspected DUI offender off the patrol persons’ hands so that patrol person can go back to patrol duties.  DUI officers are often involved in investigation of accidents so accident investigation background is necessary.  In a felony arrest, the DUI officer assists in interview and making sure blood is properly drawn (for the blood alcohol testing).  The DUI officer works at night primarily.  “Traffic” has Traffic variables: motorcycle enforcement, writing traffic tickets, and traffic accident investigations.  DUI enforcement officers do a little bit of everything.

            Sergeants Butterman and Schmidt had discretion on how to conduct the interviews.  There were no instructions given on how to do them. 

            He depended on the two sergeants, Lieutenant Ballard said, for all his information and made no investigation of his own about such things as the number of DUI arrest any candidate had made, whether any had been disciplined or placed on administrative leave.  If the two sergeants hadn’t looked at any records, they probably should have.  He was questioned about evaluation as follows:

Q.        Since you did not look at the jacket, personnel or any other records concerning any of the candidates, including Officer Marsh, you would have no way to evaluate their arrest performance or whether there was a history that indicates problems in dealing with the public or any of the other criteria, would you?

A.        No.

            Lt. Ballard acknowledged that he did not know until recently that Officer Sheffield’s Supervisor, Sergeant Lange, had not endorsed Officer Sheffield.  When cross examined about the 8 criteria expressed in Exhibit J-4 (Memo announcing DUI enforcement officer position opening), he said they were guidelines.

Deputy Chief Thomas  (Tom) William Robinson, IV testified

            He has been with RPD almost 23.5 years.  His rank is Deputy Chief of Police.  He is assigned to Operations Support Division.  Before that, he was a captain.

            Until the airport meeting (the consensus meeting), the Acting Chief had little to do with the summer 1998 DUI enforcement officer selection.  He corroborated that the process was (1) notice posting; (2) interviews by the 2 sergeants; (3) consensus airport meeting; and (4) meeting with Command Officers.  However, Sergeant Schmidt testified that he and D. C. r talked about the candidates including Officer Marsh and that D. C. Robinson had misgivings about Officer Marsh.

            Both Sergeants Butterman and Schmidt had approached him about concerns Officer Marsh had because of his [Marshes’] representation of officers in RPPA.  D. C. Robinson said he told them to relate to Marsh that Marsh’s candidacy would be treated like anybody else’s.

            At the meeting, he made no mention about the RPPA or about age.  Lt. Ballard was the most outspoken against Marsh at the meeting.  At the beginning of the meeting, Sergeant Butterman had Marsh ranked first and Dugan second whereas Sgt. Schmidt had the 2 ranked equally.

            In addition to in-house training, the DUI enforcement officer is sent to a special training school in Florida.  Yes, he intended to rotate whoever is in DUI enforcement every 3 years.

            He acknowledged that at the consensus meeting one issue was the perceived unwillingness of Officer Marsh to take enforcement action against another law enforcement officer.  Unwillingness would concern him as a division administrator, he acknowledged.  D. C. Robinson has no empirical evidence that Officer Marsh would not follow the policy of the RPD in enforcing against another law enforcement officer.

            Officer Marsh has been FRO (field training officer) for several years.  He agreed that one of the most difficult things any FTO must do is recommend termination of a rookie officer.  He acknowledged that he has no reason not to believe that Officer Marsh has recommended termination 10 or 12 times.  A probationary officer (rookie) is authorized to conduit law enforcement activities, he agreed.

            He admitted using the phrase that he felt younger officers ought to be given opportunities within the department but insisted that he meant younger in years of tenure not in terms of age.

            He admitted not wanting to meet with Officer Marsh about any concerns Officer Marsh may have had about the DUI enforcement officer opening.  He thought it would be unfair to meet with one candidate and not the others.

            On cross examination, when referred back to the airport meeting, D. C. Robison said,”[a]s soon as Ballard raised the issue about Marsh’s perceived inability or willingness to properly carry forth and arrest officers and those things, Butterman immediately acquiesced and stated that he changed his position.  So my perception of whether he was going to finish first or not was never at stake.  No, I didn’t consider that the question be put directly to Officer Marsh about his ability to arrest another officer.  The money thing was a big issue, he said.

V.        DISCUSSION:  OPINION

A.        Burden of Proof.

            In Age Discrimination in Employment Law (“ADEA”), the burden of proof is drawn from Title VII.  The burden follows the Supreme Court’s opinion in McDonnell Douglas Corp., v. Green, 411 U.S. 792, 5 BNA FEP Cases (1973) required the Plaintiff (analogous to Officer Marsh here) to establish a prima facie case thus raising the inference of unlawful discrimination and then shifting the burden to the Defendant (analogous to RPD here) to articulate a legitimate and nondiscriminatory reason for its employment action.  McDonnell at 802. 

            In an ADEA action, to establish a prima facie case, the plaintiff must (1) show he is of the protected age (40 or over);  (2) that he was qualified for the job; (3) that he was not hired or promoted (or transferred).  Frequently a fourth element is added that the job was filled by a younger person.  Appointment of a younger person may give rise to the inference of discrimination and may be rebutted by the defendant if the defendant shows legitimate, non-age reasons; good cause; or similar strong factors.  The Ninth Circuit Court of Appeals, the appellate court for federal cases in Nevada has held that the ADEA defendant (RPD) must prove the affirmative defense of “factors other than by age” by a preponderance of the evidence.  Criswell v. Western Airlines, Inc., 709 F.2d 544, 32 BNA FEP 1204 (9th Cir. 1983.

            Title VII[5] and Age Discrimination in Employment “ADEA”[6] laws and their progeny evolving since the 1964 Civil Rights Act prohibit discrimination in terms, conditions, and privileges of employment.  The State of Nevada has enacted similar laws.  The essence of the laws is included in Article 5 of the CBA

            Article 5(c)     The provisions of this Agreement shall be applied equally to all employees in the negotiating unit, without discrimination as to age, sex, marital status, race, color, creed, national origin, or political affiliation.  The Association shall share equally with the City the responsibility for applying this provision of the Agreement.

B.        Reserved Management Rights.

            NRS 288.150 (3)(a) reserves the right to hire, direct, assigns or transfer an employee is reserved to the local government employer (RPD management).  The CBA clearly reserves the rights in the RPD too.  Article 4 (a) (1).  The rights, strong as they are, must be applied within the context of other laws and are not unbridled rights.

C.        Application of Facts and Law

            Officer Marsh did make out a prima facie case sufficient to shift the burden to the RPD to articulate a legitimate and non-discriminatory reason why he was not selected to be 1 of the 2 transferees to DUI enforcement officer.  Officer Marsh is nearly 47 years of age, a member of the protected age group, and is the oldest of the 3 finalists in age and in length of service at RPD.  Officer Marsh was selected as number 1 by one interviewing sergeant and was tied for number 1 by the other sergeant when the interviews were finished.  When, despite that high standing, Officer Marsh was not selected, the burden shifted to RPD to articulate legitimate, non-discriminatory reasons why Officer Sheffield and not Officer Marsh was picked.

            An arbitrator should not sit as super personnel officer.  I will point out discrepancies in practice and application of RPD documented policies because they stand out and because no evidence was introduced by the RPD to demonstrate any special attributes or qualities either Officer Dugan or Officer Sheffield had over Officer Marsh that would make them as qualified or more qualified for the DUI enforcement officer positions.  However, there is no requirement in discrimination law that the most qualified person must be awarded the job.  Frequently there are other reasons why the most qualified person for a contested position should not be awarded a job, not the least of which is a personal inability to get along with the people he or she must work with.  However, here, the record is absent of any discussions about Dugan’s or Sheffield’s qualifications advanced by RPD beyond the fact that the Interviewer Sergeants rated 1 of them below and 1 equal to Marsh on the strength of interviews.  What qualifications or skills either successful officer had that had the effect of raising him or lowering Officer Marsh in the final standings was never satisfactorily explained.  Moreover, Officer Lange, Officer Sheffield’s immediate supervisor testified that he did not recommend Sheffield and gave reasons (see selection process section later). 

            Officer Marsh’s personnel records were submitted into evidence.  No records of either of the 2 successful applicants  (Dugan and Sheffield) were submitted into evidence.  The testimony of Officer Meister the incumbent DUI enforcement officer who is to be replaced was that he had known Officer Marsh for some time and knew he was experienced in DUI work.  When transferred into the DUI enforcement officer after he was selected, Lieutenant Ballard first placed Officer Dugan under Officer Meister with instructions from Lieutenant Ballard to train him.  Officer Meister testified that Officer Dugan knew almost nothing about DUI.  A requirement of criterion “4)” of the notice (Exhibit J-4) was that the applicant needed to be familiar with basic DUI procedures.  Incumbent DUI Officer Meister testified that Dugan knew little whereas Marsh knew a great deal and would need no training from Meister except familiarization with the special equipment.  

            The testimonies of both Sergeants Butterman and Schmidt, the interviewer sergeants who know and have worked with Officer Marsh was to the effect that Lanny Marsh was highly qualified, experienced in DUI work, and had a good work record.

D.        The Selection Process

            While the stipulated issue for resolution concerns the Age Discrimination provision of the Collective Bargaining Agreement (“CBA”), the overall selection process is inextricably bound within the issue.  I first address troubling aspects of the manner in which the 1997 selection process was carried out for the 2 openings in the position of DUI enforcement officer.[7]  What appear to be written requirements were ignored, leading me to question the integrity of the process? 

            I first look to Exhibit J-4, the memorandum signed by Lieutenant Ballard announcing the job opening for DUI enforcement officer in 1997.  Sergeant Butterman prepared the Exhibit J-4 memorandum apparently at the request of Lieutenant Ballard.  The Exhibit J -4 memorandum borrowed from Lieutenant Bunker’s Memorandum (Exhibit J-9) of 1994 when the DUI enforcement officer position was first initiated in the RPD.

            Glaring examples of disregard for department requirements stand out.  In Exhibit J-4 (Lieutenant.  Ballard’s Notice for DUI Officer Position dated May 5, 1997 and J-9 (Lieutenant Bunker’s Notice for DUI Enforcement/Traffic Division dated March 4, 1994, one criterion is expressed in “8)” and “7.” respectively as “Must be endorsed by supervisory personnel” and Must be recommended by their present supervisor.      Must” is considered by most to mean a mandatory command or a requirement.  While legal purists primarily use “shall” as the unmistakable imperative in drafting laws and contracts, “must” is also an imperative word. Sergeant Lange, Officer Sheffield’s, supervisor testified that Officer Sheffield asked him for a recommendation but that he didn’t give Sheffield a recommendation (endorsement) because Officer Sheffield was unacceptable in “completed work” and was not ready, in Sergeant Lange’s opinion, for a special assignment.  Further Sergeant Lange watched Officer Sheffield on a few occasions and was concerned that he was deliberately holding DUI work over near the end of a shift for himself in order to get overtime pay.  This is the kind of conduct to get extra money that the higher command officers frown on.  As expressed by D. C. Weston, when testifying, said, “We use to have a situation  ... when if was a patrolman that officers near the end of the shift, 3:30, 4 o’clock in the morning, would look for a last minute DUI and to make that arrest to extend their overtime.

            It is puzzling that there was no check made either by the two interviewer sergeants or by their command officers (Lieutenant Ballard and D. C. Robinson) through RFD’s records to verify whether or not each applicant had met the enumerated requirements of Exhibit J-4.   Apparently, the 2 interviewing sergeants were left on their own to determine if any or all of the enumerated criteria had been met.  In the testimony of the 2 interviewer officers, there is little to no reference to checking departmental records even though the 8 enumerated criteria include reference to RPD evaluations and records of the candidates.

             In his testimony, Lieutenant Ballard dismissed the requirement of criterion “8)” of the form[8] he authorized as being just a “guideline.”  However, if the criteria are just guidelines, then it defies understanding why the criterion in “2)” and “8)” are prefaced by the word, “ Must.”  Lieutenant Ballard derived his Exhibit J-4 criteria from those of Lieutenant Bunker’s in 1994.  The differences between the Bunker and Ballard Memoranda are minimal but both share the mandatory need for supervisory recommendation and record checks about the candidate.  That one of the successful applicants supervisors expressly would not recommend him should have been a concern either to the two interviewer sergeants or the command officers who participated in the consensus or airport meeting.  Sergeant Lange testified that he thought he had made it clear to Lieutenant Ballard that he would not recommend Officer Sheffield.

            I am troubled by the unstructured interviews conducted of all the applicants.  The published selection process on its face was heavily papered with detail (8 criteria), much of which seems to have been ignored.  All command officer witnesses, when asked, admitted that there was no instruction on what facts to seek yet it was clear that one or both higher command officers had questions about Officer Marsh.  It is astounding that 2 higher command officers waited until the final consensus meeting (airport meeting) to bring derogatory or troubling information about Officer Marsh to the attention of the same two sergeants who were assigned the task of sorting out the applicants.  Not only was that delay an imposition on the sergeant’s it also denied Officer March a chance to respond.

            That one applicant (Dugan) presented himself so well at the interview that he was selected when at the same time, no record search as set forth as a mandatory criteria was run, reveals that the process was largely subjective.  Subjective interviewing can lead to arbitrary and capricious selection.  Important criteria should most certainly be expressly covered in an interview for a transfer where, as here, the department went to a great deal of trouble to detail the selection criteria.  Strangely, here, the man who was finally rated number 1 after the consensus meeting was entirely unknown to the two interviewing sergeants until their interviews.  The 2 interviewing sergeants checked no documents, just the applications (a memo or an e-mail giving notice to Lieutenant Ballard of the candidate’s interest) and had no idea whether the enumerated criteria laid out by the commanding officer had been met.  A coveted transfer to an important job shouldn’t be won or lost on the candidate’s interviewing skills alone especially when RPD had gone to the trouble to publish the criteria for applicants and the criteria had been prepared by one of the Interviewer Sergeants and authorized by Lieutenant Ballard.

            The obvious fact that the successful applicants for DUI enforcement officer would make a great deal of money loomed large in the selection process at the “airport” or “consensus meeting “ but not at the interviewing stage when an applicant met with the interviewer sergeants.  That money was a major factor against Officer Marsh but no others was revealed when D. C. Weston testified about what he knew of the selection from conversations with or statements from D. C. Robinson and Lieutenant Ballard.  There was another concern expressed that Lanny Marsh might not be “productive.”  Nothing was brought out in the RPD’s case in chief about what is meant by “productive.”  When cross examined about productivity, D. C. Weston admitted that a DUI enforcement officer makes more money from making more arrests but that a DUI officer show probable cause and make a good arrest and that if he didn’t sooner or later he would be evaluated in a negative manner.

            Money was not openly discussed at the interviews with the exception that Officer Marsh candidly told the interviewers he was interested in the money to enhance his retirement.  The interviewers seemed unwilling openly to ask the candidates about whether the significant increase in money to be earned was important to the applicant and relied, instead, on vague references as to whether the job would impact on the applicants private lives.  I wonder if the applicants knew that the vague reference to impacting private lives was asking in some kind of code whether or not the open secret that the DUI enforcement officer position paid significantly more than other positions was important to the applicant.  A direct question would surely have been better than something expressed by innuendo.

            Both the interviewer officers testified the money factor shouldn’t be held against Officer Marsh.  Had the extent of overtime pay available to DUI enforcement officers been of such concern to Lieutenant Ballard (as later became clear at the airport or consensus meeting), it should have been more forcefully and openly discussed by the interviewers.  Initial input from the interviewer sergeants’ superiors could have made the interviews more effective in evaluating and separating candidates.

            Indeed, it would be abhorrent to allow incentive compensation to be based upon the number of DUI arrests an officer may make. RPD clearly does not allow such compensation.  The DUI enforcement officer is a specialist who takes the matter over from a patrol officer to lend expertise to court case preparation and to insure the preparation of authentic and admissible evidence.  The RPD has all the power it needs to penalize patrol officers who seem to be misusing a DUI arrest as a means to make money.  Approbation from courts and prosecuting attorneys surely are another way of stopping any such desire on the part of DUI enforcement officer to abuse the process.  One testifying sergeant expressly commented on his concern about one of his officers (a candidate for the position) making arrests for DUI late in the shift seemingly wanting to keep them instead of turning them over to the DUI enforcement officer specialist, as is the protocol. 

            It was at the consensus meeting that Officer Marsh’s standing was reduced to number 3 after it had been number 1 with one interviewer and tied for 1 or 2 with the other.  It is incongruous that the factors about Officer Marsh that scuttled his chances were first raised and forcefully argued by Lieutenant Ballard at the consensus meeting.  Each applicant was required to notify Lieutenant Ballard by May 16, 1997 of the applicant’s interest in the position or how aggressive Officer Marsh would be in arresting a law enforcement officer suspected of a DUI infraction.  Lieutenant Ballard’s concerns about Officer Marsh’s new found interest in traffic or alleged reluctance to arrest DUI violators who may be law enforcement people should have been conveyed to the interviewing officers in advance so that Officer Marsh or other applicants could face the questions and reply to issues important to Lieutenant Ballard since all the men applying for the open position would be under his command.  It is odd that higher command officers would not want specific answers and clarification from applicants instead of nebulous questions about money or any other factor important to higher command officers.  The high pay potential of the DUI enforcement officer position arises because the RPD made it that way.  The open secret that Officer Meister made approximately $93,000 per year would be an incentive for an ambitious officer.  Nobody testified whether the other applicants besides Officer Marsh wanted the extra money because the request for that information was couched in obscure terms about whether their private lives would be impacted, an indirect way to see if the applicant could handle all the over time to qualify for the extra money. 

            Regardless of D. C. Robinson’s and Lieutenant Ballard’s professed concern about Officer Marsh’s wanting the extra money and placing it high on his personal agenda, I give little weight to those concerns.  RPD made the “big money” position available and the high money potential was well known.  Officer Marsh did not prevaricate or beat around the bush, he made it known he wanted the extra money to enhance his retirement, an honest and understandable purpose.  What should have been concentrated on was whether Officer Marsh could carry out the DUI enforcement officer position effectively.  I will address the issue later.

            Finally, just a casual reading of Joint Exhibit 4, particularly its items “3)” (Performance history that indicates no continuing problems in dealing with the public in a courteous and appropriate manner;  “3)” and “4)” (Possess above average work ethic as demonstrated by evaluations and disciplinary record;) raises other questions about the process.  How can the RPD expect the Inter-Office Memorandum (Exhibit J-4) to have meaning when it allows the Memo to be ignored about items 3), 4) and 8) when RPD seeks to have a specialized position filled from within the RPD?  In effect, the RPD published requirements and then allowed its own requirements to be undercut or ignored.

E.        Other Objections Raised About Officer Marsh at the Consensus Meeting

            D. C. Robinson told Officer Marsh that he was not qualified for DUI enforcement during one of the appeal steps leading to this grievance bit did not elaborate any reason.  The statement flies in the face of Incumbent DUI Officer Meister’s statements that Officer Marsh was experienced and would need only one night to go over the specialized equipment to be up and running.  If D. C. Robinson meant something other than “skills” when talking about qualifications, why did he not elaborate them?

            D. C. Robinson testified that when Sergeant Butterman was presented with Lieutenant Ballard’s concerns about Officer Marsh’s reluctance to arrest another officer that Sergeant Butterman immediately backed off his emphasis on selecting Officer Marsh.  Given that the RPD is a quasi-military structure and that the meeting involved two higher command officers than the two sergeants, it is not surprising that Sergeant Butterman then backed off.  As Sergeant explained, “we just soldiered on.”  In his own testimony, Sergeant Butterman said he has never changed his mind and that Marsh was the best of the three finalists.

            Neither Lieutenant Ballard nor D. C. Robinson had any empirical evidence that Officer marsh would not arrest a fellow law enforcement officer yet each expressed grave concern.  It seems that Officer Marsh made a comment at a shift briefing more than 3 years earlier that he may find it difficult to arrest a fellow officer.  When asked during examination, Officer Marsh testified at this hearing that he would follow orders.  Officer Marsh as Field Training Officer had recommended the termination of several rookie police officers, demonstrating that he knows his duty.  Moreover, Lieutenant Ballard failed to bring up the matter until the consensus meeting.  I find it remarkable that a statement made by Officer Marsh several years ago should have the effect of destroying his chances for transfer under these circumstances, particularly in view of Lieutenant Ballard’s testimony that Officer Marsh was one of the finest officers in the RPD.

            Similarly, Lieutenant Ballard seemed to hold against Officer Marsh that he had voiced a year or more ago to him that he [Officer Marsh] wasn’t interested in traffic.  Then, Lieutenant Ballard had asked Marsh, when making conversation, ”why he didn’t come upstairs and work with him [Lieutenant Ballard] in traffic.  Officer Marsh said then that he wasn’t interested in traffic.  In his testimony, Lieutenant Ballard described the duties of DUI enforcement officer and about RPD’s traffic division.  The two functions are distinct although related.

            I have previously dealt with the “productivity“ issue and find it just a “red herring.”  That the number of arrests by a DUI enforcement officer affects the amount of money he makes is obvious and is a necessary result of the DUI enforcement officer position as created by RPD.  A DUI officer who doesn’t make good arrests risks too much disapproval.  I don’t believe an officer described as being one of the finest at RPD, as Officer Marsh was described by Lieutenant Ballard, would risk a long and successful RPD career by making improper money making DUI arrests.  

            Last, I turn to the claim of retaliation by Officer Marsh.  Officer Marsh is one of the members of the RPPA designated by RPPA to represent fellow officers against the RPD.  Officer Marsh was concerned that his candidacy for DUI enforcement officer may be affected by his position, particularly as it may have been impacted by his representation of Officer Cercek.  The testimony of Officer Cercek and cross were both inconclusive.  I find that there is no sufficient link between RPPA representation and Officer Marsh’s candidacy to evidence retaliation.

F.         Seniority:  Younger Man

            Article 33 of the CBA deals with seniority during layoff and pronounces that permanent employees will be laid off according to seniority within classification and reduction starting with the least senior employee but Article 33 is inapplicable to the transfer matter before me.  In the absence of a definition of seniority in the CBA, seniority is commonly understood to mean the length of service with the employer.  See ELKOURI AND ELKOURI, HOW ARBITRATION WORKS, Seniority, Chapter 14, page 586, (4th Ed. 1985).  Nowhere but in Article 33 of the CBA is seniority mentioned.

            RPD General Order for Departmental Transfers and Special Assignments was introduced as Joint Exhibit 11.  Here, the author of the General Order, Deputy Chief Weston, testified.  The General Order includes a topic on Announcements, Eligibility,[9] and Seniority, among other things.  When asked “Assuming all other elements are equal, should the most senior person get the assignment?” he replied, “That would be a valid criteria if all other positions or both candidates are equal in all other fashions as far as we can determine, and I would have no objection using seniority as the selecting factor to break that draw or make that tie.”

            Unrebutted evidence was that D. C. Robinson’s policy and statements were that he wanted younger officers promoted to show younger officers that they had opportunities in the RPD.  Standing alone, that laudable policy is not discriminatory.  Contradictory evidence was that Lieutenant Ballard warned Officer Meister not to expect Marsh to be hired because a younger man was wanted.  Lieutenant Ballard firmly denied making the statement.  Officer Meister testified he thought that meant younger in terms of age.  Yet, both Lieutenant Ballard and D. C. Robinson when cross-examined explained that what they meant was “younger in terms of seniority.”  Here, Officer Marsh is oldest in terms of seniority (Officer Marsh will be 47 in February 1998) as compared to the two successful applicants.  The other two finalists were younger not only in age but also in seniority.  Officer Marsh was downgraded from number one to number three at the consensus meeting when D. C. Robinson and Lieutenant Ballard first became directly involved in selection.  Neither the general order nor the CBA define seniority.  Moreover, nothing was presented by way documentary evidence to suggest that seniority as interpreted in Personnel Policy at RPD means anything other than number of years employed by RPD.

            The explanations by Lieutenant Ballard and D. C. Robinson as to what they meant by younger or junior men in the context of seniority were not persuasive.  I find the explanations to be pretextual and not legitimate non-discriminatory explanations sufficient to carry RPD’s burden of persuasion.

            An employee’s’ right to equal consideration by an employer in promotion, transfer, or assignment by his employer is a privilege, term and condition of employment under ADEA law.  Moreover, under the General Order 4/760.000 (Joint Exhibit 11) in effect at RPD, seniority is considered during the selection process as long as the applicant demonstrates an ability and competency to do the job.

            Unquestionably, Officer Marsh has the ability and competency to do the job and is more senior than the other 2 of the 3 finalists.

VI.  AWARD

            Officer Marsh shall be transferred in 1998 to the position of DUI enforcement officer.  If Officer Sheffield has been formally awarded the post, his transfer to DUI enforcement officer shall be rescinded.  I expressly do not award any monetary or other make whole remedy.

            DATED this 23rd day of December 1997

                                                                                     ______________________________

                                                                                    David K. Robinson, J.D.
                                                                                    FMCS Arbitrator

CERTIFICATE OF SERVICE BY MAIL

            I certify that I mailed signed copies of this award and of the Appendix to the persons at the addresses shown below by first class mail on the 23rd day of December 1997.

                                                                                    ______________________________

                                                                                    David K. Robinson

 

City of Reno

Rick Gonzales, Esq., Labor Relations Officer
City of Reno
490 South Center Street
PO Box 2900
Reno, NV 89505

RPPA (The Association)

Michael Eugene Langton, Esq.
Langton & Yenko
801 Riverside Drive
Reno, NV 89503



[1]           Driving under influence.

[2]           It was also an open secret that Office Meister, a  DUI enforcement officer, made about $93,000 in 1996.

[3]           The ranking (Exhibit J-7) was  from top to bottom:   Dugan, Sheffield, Marsh, Yawn and Green.  Six officers were interview including Officer Birchill.  At some point Officer Birchill withdrew or something, the witness said, leaving only 5  in the ranking.

[4]               The  other is Officer Dugan , the successful applicant. He is now supervised by Sergeant Donnelley.

[5]               42 USC §2000((e) et seq., as amended.  The Civil Rigths Act of 1964.

[6]           29 USC §621 et seq,

[7]               Based on the process, one applicant was selected and hired in mid 1997 and the other successful applicant is scheduled to be transferred officially in early 1998.

[8]               8) Must be endorsed by supervisory personnel.

[9]           Under D.2, the unit commander (Lieutenant Ballard here) is responsible for establishing the criteria for selection.

 

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