2000 NAC 115 Oregon State Police and Oregon State Police Officers' Assoc

Title: Oregon State Police and Oregon State Police Officers' Association
Date: December 29, 2000
Arbitrator: Michael E. Cavanaugh
Citation: 2000 NAC 115

By order dated March 21, 2000 (confirming an oral ruling on March 17) I asked the parties to brief the issues presented by the Union’s motion for a delay in the hearing of this matter scheduled for March 29 and 30, 2000. The Union first presented the motion orally during a March 17, 2000 telephone joint status conference, arguing that the Grievant’s testimony at the hearing would waive his right against self-incrimination with respect to pending criminal charges growing out of the same incidents leading to his termination.

I received the Employer’s brief by fax on March 22, 2000 and by hard copy (with copies of authorities relied upon) on March 23. The Union was unable to brief the matter, but argued the issues at the commencement of the hearing on March 29, 2000 in Ontario, Oregon. I also heard further oral argument from the Employer at that time. In addition, prior to the hearing I did independent research and advised the parties by faxed letter on March 24, 2000 of the authorities I had reviewed, asking for their views on their relevance/applicability.

After hearing oral argument for approximately one hour on March 29, I granted the Union’s motion in part and denied it in part. In sum, I held that I would receive all evidence from the parties except the Grievant’s testimony. I noted that at the close of the testimony, I would rule on how long this “partial stay” would last (i.e., until the resolution of the criminal proceedings, until Grievant testified, gave a statement, or otherwise waived his right against self-incrimination, or some other determining factor). I also made clear that a condition of this “stay” would be no back pay for Grievant during the stay should I ultimately rule that he would otherwise be entitled to such a remedy. In addition, I reserved the discretion to further limit Grievant’s remedy, if any, such as ordering reinstatement (if appropriate) to the “next available position” rather than immediate reinstatement.

Following my oral ruling, Grievant conferred with counsel for the Union, and it is my understanding he agreed to the stated conditions for grant of a partial stay. We then proceeded to hearing. At the conclusion of two days of testimony and receipt of numerous documentary exhibits, I ruled orally that the stay would be in effect until the criminal proceedings are concluded or until Grievant testifies, gives a statement, or otherwise waives his Fifth Amendment rights. This formal written ruling sets forth the considerations and rationale upon which I relied in arriving at the stated decision.

The Union argued that it would be unfair to force Grievant to choose between testifying in this proceeding (to attempt to preserve his livelihood) or to forego that opportunity in order to protect his right against self-incrimination. This choice, the Union argues, is just like the “Hobson’s Choice” condemned in Garrity v. New Jersey, 385 U.S. 493 (1966)(coerced statement of public employee during employer’s investigation may not be used in subsequent criminal proceeding).

Further, the Union argued, the “Employer” here is the same entity as the prosecuting agency, i.e. “the State of Oregon.” The self-incrimination issue arises in this situation, the argument continued, only because the State has chosen to appeal the grant of demurrers to two of the criminal counts against Grievant. Further, there are significant issues as to whether the State has a practice of failing to observe the requirements of immunity when police officers are compelled to give statements in “employment” investigations while parallel criminal proceedings are pending (or are possible). Moreover, the potential consequences to Grievant if he is convicted of the pending charges are significant. They include not only loss of employment, but also loss of ability to serve as a police officer in another jurisdiction; alleged inability to have the convictions expunged (because of multiple convictions); and the possibility of a substantial fine and/or imprisonment.

Under these circumstances, argued the Union, it is unfair to proceed with the arbitration of the employment issues under the collective bargaining agreement until the criminal proceedings have run their course.

The Employer distinguished the Garrity situation by noting that in that case, the employer was the initiating party, i.e., it was the employer who was moving the process forward and insisting on the participation of the employee. Here, by contrast, it is the Grievant and the Union who have filed a claim under the collective bargaining agreement, and the Employer is not insisting that Grievant make any statement whatsoever as part of the process.

The Employer also cited several cases holding that civil and criminal matters may proceed independently and that a litigant’s choice to participate fully in the civil matter at the potential cost of impacting self-incrimination in the criminal matter “does not automatically control the destiny of the [civil] matter.” Employer’s Letter Brief at 2. Rather, a “balancing” of the rights and interests of the parties determines whether a stay should be granted.[1]

A balancing of the interests of the Grievant, the Employer, and third parties (including the public), argued the employer, does not justify a stay. The Grievant’s interests are insubstantial because there has been no indication that he contests the underlying conduct nor even that he has made a firm commitment not to testify at a criminal trial.

The Employer and the public, on the other hand, will be adversely affected by an indefinite delay because: 1) the matter is on appeal (which will very likely take more than a year to decide); 2) whatever the Court of Appeals decides, the matter will then be returned to the trial court (a charge of disorderly conduct, to which a demurrer was denied, is still pending); 3) the Employer has a right to present evidence in one continuous hearing, not a procedure in which one party presents its evidence and the other has an extended period to plan to meet it; 4) the memories of witnesses will fade over time, preventing presentation of accurate evidence at an eventual hearing and unfairly subjecting the witnesses (many of whom are third party witnesses unconnected to either party) to attacks on their credibility; 5) potential back pay liability will continue to accrue during a stay; and 6) the public has a right to effective and full-strength law enforcement, but the uncertainty of the outcome of this proceeding would mean an open trooper slot on an indefinite basis.

The Employer further argued that any right against self-incrimination may only be asserted in the criminal proceeding via a motion to suppress. The Arbitrator, according to the Employer, is not empowered to decide these constitutional issues. Nor has it even been shown that the prosecutor would seek to obtain Grievant’s arbitration testimony if he took the stand in this proceeding.

Finally, The Employer noted that the request for stay came shortly before the scheduled hearing although the self-incrimination issue was present much earlier because of the disorderly conduct charge.[2]

The Employer thus argued that the arbitration proceeding should go ahead without reference to the pending criminal matter, leaving the Grievant to the difficult strategic choices inherent in litigation.

At the outset, I note that neither party (nor the Arbitrator, for that matter) was able to find a case or other authority directly on point. Thus, I have been forced to decide this issue based on general principles and by analogy from cases that address similar, albeit not identical, situations.

I have considered the following general principles. First, I assume that the Fifth Amendment, whatever its implications here, applies to an arbitration proceeding in a public employment context. See, e.g., City of Youngstown, 107 LA 588 (Skulina, 1996), cited with approval in Elkouri and Elkouri, How Arbitration Works at 57 (1999 Supp.). I do not understand the Employer to challenge this notion. Rather, the Employer seems to

have conceded, at least for the sake of argument, that the constitutional provision applies. The argument, instead, is that the Fifth Amendment, even if applicable, does not justify a stay. Therefore, I have assumed, without deciding, that Grievant may assert a constitutional right against self-incrimination in the context of this proceeding.

In making this observation, I hasten to add that I do not view a resolution of this or any other constitutional issue as necessary to decide the motion before me. It is sufficient for these purposes that the Union has raised a colorable constitutional issue as to Grievant’s right to be free from self-incrimination in the arbitral hearing process. Although I would not consider a “frivolous” constitutional contention sufficient to support a motion for stay, I find that the Union has raised a colorable Fifth Amendment issue here in light of the authorities (including those cited by the Employer) and in light of what I understand to be the Employer’s arguendo concession.

Second, I find that the Arbitrator possesses authority to grant a delay in the arbitration proceeding for “good reason.” This power is inherent in the Arbitrator’s authority over the procedural aspects of the hearing process and is expressly recognized by most, if not all, arbitration statutes. For example, ORS 243.706(3)(C) provides that the arbitrator may “adjourn a hearing from day to day, or for a longer time.” Not only have arbitrators been invested with the power to grant delay, it is accepted law that a refusal to do so in the face of demonstrated “good reason” is a ground for overturning an arbitration award. Elkouri and Elkouri, How Arbitration Works at 352.

I find nothing in this particular CBA that alters this general rule. Although the agreement contains express timelines for the discipline process and for appeals to arbitration (including, in § 12.1, a provision that the arbitrator hear the parties “as soon as possible”), it also contains notions of “practicability” in the scheduling process. See, e.g., language contained in § 11.3 (“The parties agree to schedule arbitration as soon as is practicable”). This language, although concededly directed to the parties and not the Arbitrator, embodies notions broad enough to encompass delays in the arbitration process based on “unavailability” of significant evidence or similar situations that interfere with a full and fair consideration of the matters in dispute. In any event, I do not find the “as soon as possible” language, standing alone, to be sufficient indication of an intent to deprive the Arbitrator of the recognized authority to grant a delay in the proceeding, in whole or in part, for demonstrated “good cause.” Had the parties intended to deprive arbitrators of this long-recognized authority, I find they would have done so more explicitly.

Third, in considering requests for “delay,” I do not find an inherent distinction between a request for a relatively brief “continuance” (or “setover”) and a request for a more extended delay in the proceedings. Of course, the length of a requested delay will be a significant factor in the Arbitrator’s decision whether to grant a postponement. The fact that a requested delay is more akin to a “stay” than a “setover,” however, does not in my view call into question the Arbitrator’s jurisdiction to decide the procedural issue.

Fourth, I find that the decision whether to grant a request for delay depends on a balancing of the interests and rights of the Grievant, the Union, the Employer, and third parties, including the public. The authorities cited by the Employer, and the main thrust of the Employer’s argument here, are to that effect. Nor was anything in the Union’s argument to the contrary.

Fifth, it seems to be the general rule that CBA arbitration proceedings and related criminal proceedings are independent of each other. In other words, simultaneous consideration of issues in the arbitral and criminal forums is not prohibited. See, e.g., Brand, Discipline and Discharge in Arbitration at 180 (BNA, 1998); Fairweather, Practice and Procedure in Arbitration at 166-67 (2d Ed., 1982).

Moreover, the outcome of a criminal proceeding does not control the outcome under the “just cause” provision of the collective agreement. Consequently, some arbitrators have found just cause absent in cases in which the Grievant has been convicted, while others have found just cause for discipline under the contract despite an acquittal of the related criminal offense. Brand, Discipline and Discharge in Arbitration at 361-62 and arbitral decisions cited.

On the other hand, in cases bearing more directly on the issue here, i.e. cases in which a party has requested delay of the arbitral process based on considerations related to the parallel criminal proceeding, arbitrators have balanced the interests, sometimes granting a delay and sometimes refusing to do so.

For example, in Bamberger’s, 59 LA 880 (Glushien, 1972), an arbitrator declined to grant a three to four month delay requested by the employer. The prosecutor had asked the employer not to use an undercover agent as a witness in the arbitral proceeding until after the criminal trial. The arbitrator held that, despite this apparent limitation on the availability of evidence to the employer, the grievant’s right to a prompt determination of his rights under the agreement outweighed the employer’s interest in presenting all its evidence.

By contrast, the arbitrator in Florida Staff Org. and Florida Teaching Profession, 91 LA 1094 (Mase, 1988) balanced the interests in favor of a stay. In that case, the employer’s evidence included information gathered via a wiretap allegedly in violation of state law. Grievant’s private counsel obtained a preliminary injunction prohibiting the employer from using the evidence in the arbitral hearing. Balancing the interests of the parties in light of the employer’s assertion that the evidence was central to its case, the arbitrator granted an indefinite “continuance,” finding that the employer had established “good cause.”[3]

I find that these arbitral cases stand for the proposition, consistent with the Employer’s argument here, that whether to grant a delay depends on all the facts and circumstances, and particularly depends upon a balancing of the rights and interests of the parties (and the public). I further find that, although Grievant may have no absolute right to a postponement of the hearing based on the Fifth Amendment, it is not atypical for arbitrators to grant delay in an arbitral proceeding to accommodate the receipt of evidence not then available to a party for “good reason.”[4]

Balancing the interests of the parties here, I have considered the following. The Grievant has raised a colorable claim of a constitutional right to be free from self-incrimination in the arbitral process. This right, if ultimately found applicable, is a fundamental right of a citizen in our democracy, including a police officer. In addition, the Union has raised a colorable claim that the Employer, in this case and in others, has failed to offer adequate immunity to its officers in seeking to compel their participation in investigations during the disciplinary process. Although the Employer has argued that Grievant’s Fifth Amendment rights, if any, may only be asserted in the criminal proceeding, the assertion of those rights could be compromised, perhaps fatally, by Grievant’s decision to testify in this hearing in order to save his job. And a conviction, especially on multiple counts, could jeopardize Grievant’s future employment not only in law enforcement, but elsewhere. This situation, although not precisely the “Hobson’s Choice” of constitutional dimension involved in Garrity, presents a similar predicament.

I have also considered the Union’s interest in providing effective representation with respect to Fifth Amendment matters as related to discipline, as well as the Union’s interest in fair disciplinary procedures for its members.

Balanced against these concerns, I have considered the Employer’s interest in prompt resolution of disciplinary proceedings to minimize back pay exposure, to receive efficient legal services (e.g. to avoid duplicate legal costs inherent in a continuance granted shortly before a scheduled hearing), and to avoid potential indefinite operation of the Ontario State Police office at less than full strength. These are obviously interests of the public as well.

I have also considered the potential impact of indefinite delay on the arbitration hearing itself. For example, I have considered the possibility that evidence will be lost because of fading memories; or that the Employer might receive an unfair hearing because the Union could hear its evidence and then have an indefinite delay in which to plan to meet it (rather than be faced with the usual circumstance in which the disciplined employee and the union must present all their evidence at the hearing shortly after submission of the employer’s evidence.

In balancing these interests, I do not view the Arbitrator as limited to granting or denying the Union’s motion in full. Rather, part of the Arbitrator’s balancing of the interests is the consideration of alternatives to a complete stay of the proceedings. If a partial stay is a sufficient response to Grievant’s Fifth Amendment concerns while at the same time taking account of interests of the Employer and the public that would be impacted by a complete stay, the Arbitrator is not constrained either to grant or deny the motion as presented.

As noted above, considering all these factors, I have determined that the Union’s motion should be granted in part and denied in part. I have required that the parties present all their evidence at the hearing March 29-30, 2000 in Ontario, Oregon except the Grievant’s testimony. As to such testimony, I have stayed the proceeding until the resolution of the parallel criminal matter or until Grievant testifies, gives a statement, or otherwise waives his Fifth Amendment right against self-incrimination in connection with the events at issue here.[5]

I have conditioned this stay on Grievant’s waiver of his right to back pay, if any, for the period of the stay.[6] I also reserved the right to impose conditions on reinstatement including, but not limited to, reinstatement to the next available position instead of immediate reinstatement.[7] Again, Grievant and the Union proceeded to hearing with knowledge of this reservation and without objection. Consequently, I find that Grievant and the Union agreed that the Arbitrator may limit, to the extent appropriate under all the circumstances, Grievant’s reinstatement rights.

I find that this balancing of the interests protects the Grievant’s claimed Fifth Amendment rights without unfairly prejudicing the Employer, the public, or the arbitration process itself. The parties have now presented virtually the entirety of their evidence at the scheduled hearing. Thus, the “fading memories” issue has become all but moot, as have the Employer’s concerns about cost-efficient provision of legal services.

While Grievant, should he ultimately testify, might have the benefit of additional time to consider his testimony in light of all the other evidence, the Arbitrator cannot and does not presume that any witness, including a grievant, will violate

an oath to provide truthful testimony. In any event, I view the Arbitrator’s application of the traditional indicia of witness credibility as sufficient to protect the Employer’s interests in that regard.

I also note that, notwithstanding the partial stay I have granted, I will carefully review the documentary evidence while the live testimony is still fresh in my recollection. In addition, I have approximately seventy-five pages of notes, supplemented by a nearly complete tape of the hearing. Consequently, I am confident that I will be able to decide the matter fairly, based upon the evidence and testimony presented, even if there is a relatively lengthy delay between the hearing on March 29-30, 2000 and the completion of the arbitral process.

Further proceedings are stayed at this time. I request that the parties jointly inform the Arbitrator of the status of the criminal proceeding at intervals not to exceed six months from the date of this decision. Should the Employer believe that changed circumstances have significantly altered the Arbitrator’s balancing of interests as set forth in this ruling, I will entertain a motion, upon due notice, to limit or terminate the stay.

After due consideration of the arguments of counsel and authorities cited by the parties, as well as authorities reviewed independently by the Arbitrator, I now issue the following Interim Award in response to the Union’s motion for a delay in the proceedings based on Grievant’s claimed Fifth Amendment rights:

Further proceedings herein are stayed pending resolution of the parallel criminal matter or until Grievant testifies, gives a statement, or otherwise waives his Fifth Amendment right against self-incrimination in connection with the events at issue here;[8]

Upon occurrence of the event(s) outlined in paragraph 1 above, counsel shall promptly notify the Arbitrator who will convene a joint status conference to discuss procedures for receiving additional testimony in this matter, if any;

The parties should jointly notify the Arbitrator of the status of the related criminal proceeding at intervals not to exceed six months from the date of this Interim Award; and

Should the Employer believe that changed circumstances have significantly altered the Arbitrator’s balancing of interests as set forth in this ruling, I will entertain a motion, upon due notice, to limit or terminate the stay.

[1] Alternatively, the Employer argued that the Arbitrator has no jurisdiction to grant a stay in the absence of express authority under the collective bargaining agreement. Employer Brief at 6.

[2] On this issue, I accept Union counsel’s representation that he learned of the State’s appeal shortly before the telephone joint status conference and that the pendency of the appeal significantly altered the strategic implications of the Grievant’s decision whether to testify.

[3] While the arbitrator’s opinion is not a model of clarity, I presume the stay was granted to enable the employer to attempt to overturn the preliminary injunction, either at the “permanent injunction” stage of the process or via an appeal. Otherwise, there would be no reason to grant a delay.

[4] In that regard, I note that I earlier granted a postponement of the originally scheduled hearing date in this matter at the request of the Employer because certain Employer representatives (who I also understood to be potential witnesses) were unavailable on the original date.

[5] I recognize that if Grievant ultimately testifies, the Employer may want to present rebuttal evidence related to that testimony. Obviously, I will allow the Employer to do so. There were also specific exhibits that the parties agreed could be submitted after the close of the hearing. In addition, there were one or two evidentiary issues on which I reserved ruling. Should those matters require resolution, limited additional testimony might be appropriate. Collectively, these matters constitute exceptions to my ruling that all evidence except the Grievant’s testimony had to be presented at the initial hearing.

[6] By proceeding with the hearing after notice of this condition, I find that Grievant has agreed to the waiver of back pay here. In addition, I note that the Union expressly conceded, during oral argument on the motion, that the Arbitrator had authority to condition granting of a stay on such a waiver.

[7] My intention is to provide the Employer with maximum flexibility to operate at full strength despite the indefinite partial stay. Representations made at the hearing were unclear on the issue of the Employer’s budget authority to replace Grievant pending the outcome of this arbitration. I intend, however, to remove the concern (to the extent I can) that the Employer might need to terminate someone else to make room for Grievant should I order reinstatement at the conclusion of this proceeding.

[8] It should go without saying that nothing in this ruling is intended to affect the parties’ right to agree upon mutually acceptable procedures under which Grievant would testify in the arbitral proceeding.