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Title: Bell Gardens Police Department and Sandra Cervantes
Date: April 3, 2000
Arbitrator: Allen Pool
Citation: 2000 NAC 131

IN ARBITRATION PROCEEDINGS PURSUANT

To Section 14.03 of The City of Bell Gardens

Personnel Rules and Regulations

 

 

In the Matter of the Appeal of                           )

                                                                        )

SANDRA CERVANTES, Uniformed            )

Officer, City of Bell Gardens                            )

                                    Appellant or                 )

                                    Grievant                       )            FINDINGS, CONCLUSIONS AND

                        and                                          )

                                                                        )                            DECISION

CITY OF BELL GARDENS                  )

Police Department                                          )                              OF THE

                                    Respondent or             )

                                    City                              )                       HEARING OFFICER

                                                                        )

Re:       Eight-hour Suspension from Duty            )                            April 3, 2000

____________________________________)

 

 

            This matter arose under Section 14.03 (Processing Disciplinary Actions for Employees) of the City of Bell Gardens Personnel Rules and Regulations.  Pursuant to Section 14.03 (E) & (F), C. ALLEN POOL was designated to serve as the Hearing Officer in the appeal of the suspended employee and under which the decision of the Hearing Officer “shall be final”.  The hearing was conducted on March 28, 2000 in the City Hall conference room in Bell Gardens, California.  The parties were afforded the opportunity to examine and cross-examine witnesses and to present relevant evidence.  The witnesses were duly sworn and the parties closed with oral arguments.

APPEARANCES BY COUNSEL

For the Appellant:                                                         For the City:

David Marmorstein, Esq.                                              Geoffrey S. Sheldon, Esq.
Law Offices of Gerald E. Lennon                                  Liebert Cassidy
& Associates                                                                6033 W. Century Blvd., Suite 601
16800 Devonshire St., Suite 309                                   Los Angeles, CA 90045
Granada Hills, CA 91344-7403                                    (310) 645-6492
(818) 832-3555

 

STIPULATED ISSUE

 

            Did the City have just cause to issue discipline of 8 hours suspension to Officer Sandra Cervantes due to the circumstances surrounding her required court appearance on March 10, 1999 involving a traffic citation to Jorge Valdez which was dismissed?

 

FACTUAL BACKGROUND

            The events behind this appeal began on the afternoon of January 13, 1999 when Officer Cervantes issued a traffic citation to Mr. Valdez.  On January 19th, Mr. Valdez filed a complaint with the Police Department concerning Officer Cervantes conduct during the traffic stop.  The Police Department then initiated an Internal Affairs Investigation (#99-03) under the direction of Sgt. Rubin Musquiz.  The IA investigation was completed on August 26, 1999 with the conclusion that the allegations against Officer Cervantes were “Non-Verified” (City Exhibit B, p. 3; C, p. 5; and D, p. 1). 

            Mr. Valdez appeared in the Huntington Park Traffic Court and pleaded not guilty to the traffic citation.  The Court set a trail date for March 10, 1999.  On February 25th , Officer Cervantes received a subpoena from the Huntington Park Traffic Court Division 5 to appear for Mr. Valdez’ trial.  The appearance date cited on the subpoena was March 10th and the appearance time cited was 0830 hours.

            On the morning of March 10th, Officer Cervantes was in her unit and on duty somewhere within the City of Bell Gardens.  She testified that about 0830 she radioed the dispatcher that she was leaving for the Huntington Park traffic court.  Her past experience with the traffic court in Huntington Park, as she testified, was that the court did not start promptly at 0830 and she believed she would arrive on time to be present when court commenced.  The evidence record established that Huntington Park is about 4 to 5 miles from Bell Gardens and the normal driving time is about 10 minutes; but, if there is “traffic”, it could take about 20-25 minutes.

            In route to Huntington Park on the morning of March 10th ,Officer testified that she encountered unexpected road construction in another jurisdiction.  She took another route with the belief that she could still arrive in court in time for the trial.  This happening was undisputed by the City.

            When she arrived in court, she presented herself to the Clerk and was informed that the case against Mr. Valdez had been dismissed a minute or so before, at about 0845.  A short time later, Officer Cervantes encountered Sgt. Rubin Musquiz who was present in court for the scheduled trial of Mr. Valdez as part of his IA investigation.  Officer Cervantes told him that the case against Mr. Valdez had been dismissed because she had arrived late.

            As part of his IA investigative report, wherein the allegations against Officer Cervantes were found to be “Non Verified”, Sgt. Musquiz included in his report that the traffic citation issued to Mr. Valdez had been dismissed because of Officer Cervantes’ late arrival to the court.  His report included a statement from the Clerk of the Court that the case against Mr. Valdez had been dismissed at about 0845.  The Clerk told him that if an officer does not check in by 0845 their case is routinely dismissed.  Sgt. Musquiz also testified that the Huntington Park traffic court does not unlock its doors until 0830.

            On October 28, 1999, Acting Chief of Police Paul Reuter issued Officer Cervantes a notice of “PROPOSED DISCIPLINARY ACTION, NOTICE OF INTENT TO SUSPEND FROM DUTY FOR 8 HOURS”.  She was charged with violation of City of Bell Gardens Rules & Regulation, Chapter 14, Section F, (1); Bell Gardens Police Department Revised Manual, Section 1.02.01 (C, E, & QQQ); and Police Department Manual, Section 2.06.02(A).  A Skelly Hearing was conducted on December 8, 1999.  On December 13, 1999, Acting Chief Reuter issued Officer Cervantes a “NOTICE OF SUSPENSION FROM DUTY FOR 8 HOURS”.  The rule violations cited in this Notice were the same as those in cited in the first notice.  Officer Cervantes filed an appeal which proceeded to this Hearing.

POSITION OF THE CITY

            The City had just cause to suspend Officer Cervantes.  She was late for her court appearance.  The circumstances surrounding her untimely arrival justified the imposition of discipline and the 8-hour suspension from duty was appropriate.  The Court’s subpoena was clear.  She was ordered to appear in court at 0830 hours.  She failed to do so.  She left Bell Gardens at about 0830 and therefore could not have arrived in Huntington Park to appear at 0830 as ordered.  Based on her past experiences with the Huntington Part Traffic Court, she made some poor assumptions regarding the time that the Court would actually commence business.   Her untimely arrival impacted the case against Mr. Valdez.  The traffic citation issued to him was dismissed

            Her failure to appear on time violated City and Department rules.  Officers shall comply with subpoenas.  The Department was enforcing these rules with an 8-hour suspension to correct her behavior.  The suspension was in keeping with the principles and practices of progressive discipline.  The purpose underlying progressive discipline requires that the progression start from somewhere.  The Acting Chief of Police considered the circumstances and determined that an 8-hour suspension was justified and was the appropriate starting point in the progression. 

            The basic issue in this matter is that officers shall comply with subpoenas.  Officer Cervantes did not comply with the order to appear at 0830 hours.  Therefore, the appeal should be denied.

POSITION OF THE APPELLANT

            The City did not have just cause to issue an 8-hour suspension to Officer Cervantes.  She is a 10-year employee with an exemplary record.  She was late for the court appearance, but the circumstances that caused her late arrival were beyond her control.  She is being held to an unreasonable standard and was treated unfairly.  The 8-hour suspension was excessive.  It was an unreasonably harsh discipline when no discipline was necessary.  Moreover, the Department’s past practice does not support the discipline.  Therefore, the appeal should be sustained.

DISCUSSION

            Before discussing the circumstances surrounding the Appellant’s late arrival in court, a few words relative to progressive discipline and the just cause standard should help set the stage.  Progressive discipline as a concept and practice was brought up several times by the parties.  The parties made it clear that they both subscribe to the concept and practice.  However, the City and the Police Department have no written policy regarding progressive discipline and its practice.  The absence of such a policy has the potential for future problems. 

            The principle underlying progressive discipline is simple.  Unless otherwise agreed, discipline for all but the most serious offenses must be imposed in gradually increasing levels. The primary object of the discipline imposed is to correct rather than to punish.  Thus, for most offenses, employers should use one or more warnings before imposing suspensions and one or more suspensions before imposing discharge.  In the instant case, an 8-hour suspension was levied on the Appellant without any previous warning.  Moreover, the Appellant and other officers were never put on notice that failure to appear on time in traffic court could result in discipline.  Giving notice and communicating employer expectations to employees is an integral part of a progressive discipline system. 

            Another key element in the progressive discipline standard is whether the discipline is excessive.  Included in the test are the questions of whether the discipline is out of step with the principles of progressive discipline or if mitigating circumstances were ignored.  The City’s contention that the 8-hour suspension was an appropriate first step in the progression did not meet the standard.  There was no notice, no warning that such behavior could result in discipline. 

            The just cause standard has been and is still a frequently debated subject.  The standard defines misconduct or misbehavior and protects the employee from unfair treatment.  However, the standard is not some free-floating notion without a set of referents. It accords the employee due process rights which include notice that the infraction may or will result in disciplinary action. It requires that the rule be reasonable and that a fair investigation be conducted.  Due process also requires equal treatment and requires that the penalty itself be reasonable.  However, the one test of all those that can be applied and the one which is nearly inviolable, is that of adequate proof of an infraction, because if no infraction has been proved, then no penalty is just (emphasis added).

            The circumstances surrounding the Appellant’s late arrival were revealing.  She was late.  The City contended that this was all that mattered and that there was no reason for her to be late.  The Appellant was no stranger to the traffic court in Huntington Park.  She assumed that she would arrive in time by leaving at the time she did, about 0830 hours. 

            The word “about” was used frequently in the hearing by the parties to reference the time.  The Appellant left about 0830.  The Clerk of the Court even said that the case against Mr. Valdez was dismissed at about 0845.  The word “about” does not pin down a precise time.  In this case, it could mean that the Appellant departed before 0830, at 0830, or after 0830.  The City, in its closing, contented that the Appellant’s actual departure time could not be pinned down.  The evidence record did not pin down the exact time the Appellant left for Huntington Park.  However, as suggested by the Appellant, the dispatcher’s log, if it have been entered into the evidence record, may have provided the exact time of her departure that morning.  The Appellant testified she radioed the Dispatcher she was departing for Huntington Park that morning.  Unless I am mistaken, Dispatchers routinely record the time such transmissions are received. 

            Regardless of the exact time, the evidence record was clear.  The Appellant would have arrived on time in court if she had not encountered the unexpected road construction in the neighboring jurisdiction.  And, the evidence record clearly showed that the City did not consider this factor in determining the suspension.  The City’s failure to consider this factor was not in keeping with the principles of progressive discipline nor the just cause standard. 

            The City contented that the Appellant’s late arrival in court was a violation of the City’s rules and regulation, Chapter 14, and the Police Department’s Manual.  When asked at the Skelly Hearing the specific rule or rules she had violated, the Acting Chief replied that the provision was a kind of “catch-all section” but that it throws in the word “incompetency there”.  He went on to characterized the Appellant’s failure to appear on time in court as incompetent (City Exhibit C, p 1-2).  Being late because of unavoidable circumstances such as unexpected road construction is not incompetence.  Reference to any standard dictionary as to the meaning of the term incompetent will show that this characterization was a real reach. 

            The evidence record was clear.  The Appellant is a 10-year veteran officer with the Department with an exemplary record.  She is competent.  The point here is that there was no proof of any misconduct, no infraction of a rule.  Therefore, there can be no discipline.  The appeal is sustained.  The City did not have just cause to issue a discipline of 8 hours to the Appellant.  She shall be made whole for all lost wages and benefits.

AWARD

            The City did not have just cause to issue discipline of 8 hours to Officer Sandra Cervantes due to the circumstances surrounding her required court appearance on March 10, 1999 involving a traffic citation to Jorge Valdez which was dismissed.

REMEDY

            Officer Sandra Cervantes shall be made whole for all lost wages and benefits suffered from the 8-hour suspension.  The hearing officer retains jurisdiction over this matter with regards to any conflict that may arise in implementing the remedy.

 

 

Date: ___________________                                  ________________________

                                                                        C. ALLEN POOL, Arbitrator

 

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