Title: Reno Police Protective Association and City of
CASE NO. 97-21191 CSR #2
MEDIATION AND CONCILIATION SERVICE ARBITRATION
) In Re: Marsh Transfer
OF RENO (The City).
David K. Robinson, J.D.
AND PLACE OF HEARING
23 and 24, 1997; City of Reno Office Building, Reno, Nevada
E. Langton, Esq.
Gonzales, Esq., Labor Relations Officer
For the Association
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
Ronald Phillip Dreher; Deputy Chief (“D. C.”)
James D. Weston; Lieutenant James (Jim)
D. Ballard, Deputy Chief Thomas William Robinson IV
EXHIBITS RECEIVED INTO EVIDENCE
Appendix: Documentary Evidence Received)
ISSUE FOR RESOLUTION
THE DENIAL OF RPD LANNY MARSH’S APPLICATION FOR THE DUI
ENFORCEMENT POSITION CONSTITUTED A VIOLATION OF ARTICLE NO. 5 OF THE LABOR
AGREEMENT BETWEEN THE RENO POLICE PROTECTIVE ASSOCIATION AND THE CITY OF RENO?
YES, WHAT SHALL BE THE APPROPRIATE REMEDY?
RELEVANT CONTRACT PROVISIONS
Collective Bargaining (Labor) Agreement (“CBA”), October 1,1994 - June 30,
1997 between City of Reno and Reno Police Protective Association.
NO. 5. NON-DISCRIMINATION
. . .
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.
CONTENTIONS OF THE PARTIES
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
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
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.
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.
SUMMARY OF EVIDENCE AND TESTIMONY
Officer and Grievant Larry E. Marsh
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.
oral interviews with all the other applicants had been completed, both
Sergeants, Butterman and Schmidt again confirmed to Officer Marsh that he was
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
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
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
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
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,
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.
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:
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
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:
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:
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
When asked the reasons D. C. Robinson may have given for ranking Dugan
and Sheffield higher than Marsh, he replied:
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
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.
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
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
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.
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
Officer Gregory John Meister
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
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
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
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
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
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
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
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
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
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:
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,
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
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 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
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.
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.
and Age Discrimination in Employment “ADEA”
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.
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.
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
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
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
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
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
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
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
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.
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.
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,
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
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.
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.
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
Gonzales, Esq., Labor Relations Officer
Eugene Langton, Esq.
Driving under influence.
It was also an open secret that Office Meister, a
DUI enforcement officer, made about $93,000 in 1996.
 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.
 The other is Officer Dugan , the successful applicant. He is now supervised by Sergeant Donnelley.
42 USC §2000((e) et seq., as
amended. The Civil Rigths Act
29 USC §621 et seq,
 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) Must be endorsed by supervisory personnel.
Under D.2, the unit commander (Lieutenant Ballard here) is
responsible for establishing the criteria for selection.
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028