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Title:  Polk County Oregon and AFSME Local 173
Date: November 17, 2000
Arbitrator: David Pesonen
Citation: 2000 NAC 135

The Decision is only a sample the full file can be found at the ERB (Employment Relations Board) office in Salem, OR

American Federation of State, County and Municipal Employees (AFSME), Local 173 (Joy Brown, Grievant)

          Petitioner,

     And

Polk County, Oregon,

          Respondent

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ARBITRATOR'S DECISION

 

 

             This arbitration was heard in Polk County on November 9, 2000.  The Petitioner/employee organization and the individual grievant were represented by Ms. Allison Hassler, Esq.; the Respondent county, the employer, was represented by County Counsel David Doyle, Esq.  Petitioner introduced 33 exhibits and presented testimony of two witnesses, including the individual grievant.  The County introduced 14 exhibits, six of which duplicated grievants’ exhibits,[1] and presented testimony from three witnesses.  At the close of the testimony on November 9th, the matter was submitted for decision without further briefing.  Under the collective bargaining agreement, Article XII, Section 4, the arbitrator’s decision is to be rendered within 20 days of the close of the hearing.

I.              The Parties’ Contentions

Grievants:  The individual grievant, Joy Brown, submitted her resignation from Polk County employment on August 17, 1999; it became effective September 30, 1999.  She later sought to rescind her resignation but the County refused to reinstate her employment.  She and the union, A.F.S.M.E., contend that her resignation was not voluntary and amounted to a constructive discharge, without just cause.  They request that she be reinstated and made whole for losses since the date of her resignation.

The Employer:  That (1) the county’s action in declining to reinstate Joy Brown was within the scope of Management Rights set forth in Article II of the collective bargaining agreement and is not subject to arbitration.  (2) In the alternative, Joy Brown’s resignation was voluntary; therefore, it was not a constructive discharge and there was no grievable conduct on the County’s part either with respect to the cause of her resignation or in its declining to reinstate her.

II.         Procedural Background.

This grievance was initiated by A.F.S.M.E. Local 173 on Joy Brown’s behalf in early September 1999 under Article XII of the collective bargaining agreement then in effect. [Ex. M.] Article XII of that agreement sets out a fairly typical graduated system for resolution of disputes involving represented employees.  The Joy Brown grievance was denied at a combined Step 1 & 2 by Marsha Clark, Mrs. Brown’s Department Head, and at Step 3 by the County Board of Commissioners.  Each denial set forth written reasons.  This binding arbitration was pursued under Step 4 of Article XII.[2]

 III.  The Evidence

             Joy Brown began her employment with Polk County in 1986 as a Case Manager for clients with developmental disabilities, within the Developmentally Disabled Services Division of the Mental Health Department.  At all times relevant to this case she was a Senior Case Manager, reporting to Scott Anderson, Supervisor of Developmentally Disabled Services.  Mr. Anderson and Jeff Booren, Director of Mental Health, reported to Marsha Clark, Director of the Human Services Department.

             Mrs. Brown and her husband had one child, Nathan, who was severely developmentally disabled.  He suffered from autism, cerebral palsy, mental retardation and related physical conditions that required essentially 24-hour care.  Mrs. Brown is educated and trained in the field of special education and is an experienced case manager for developmentally disabled persons, as well as having personal experience in the field as a result of her own child’s condition.  She believes that one of the reasons she was hired by Polk County as a case manager in this field was her intimate knowledge of the subject as a result of her own personal circumstances with Nathan.

            In 1997 Mrs. Brown was not only a Polk County case manager for the developmentally disabled, she hosted a support group in her home for parents of other developmentally disabled children, among whom were the parents of NK,[3] another developmentally disabled child.  At that time Nathan and NK were being cared for in a different county.  Mrs. Brown at all times harbored the hope that she would eventually be able to bring Nathan into the Brown home in Polk County as his custodial care site.  In 1997 she began to formulate a plan by which that result could come about.

             The gist of this plan was for the Browns to have Nathan and one or two other developmentally disabled young men move into the Brown residence.  The Browns, as “landlords,” would receive the State funds allocated for housing of such developmentally disabled persons and would also have access to these wards’ Social Security disability payments for their care.  It would only be financially feasible to move Nathan back to the family residence if one and possibly two other recipients of funds for the developmentally disabled accompanied him in that move, allowing for shared expenses as to some elements of their care.  As the Step 3 grievance letter from A.F.S.M.E. to the County Board of Commissioners stressed, “If NK moved into [the Browns’] home, this would have given [Mrs. Brown] an adequate budget to cover both young men.”  [Ex. U-1]

             The centerpiece of the dispute in this case is whether such an arrangement constituted a violation of county policy regarding conflicts of interest.  At the time Mrs. Brown formulated her plan for Nathan and the other one or two disabled children to move into the Brown residence, the conflicts policy was set forth in County Personnel Rule 16.1 as follows:

No employee shall engage in any business or transaction or shall have a financial or other personal interest, direct or indirect, which is incompatible with the proper discharge of their official duties in the County interest or would tend to impair their independence of judgment or action in the performance of their official duties.  Personal, as distinguished from financial interest, includes an interest arising from blood or marriage relationships or close business or political association.

           The grievants acknowledge that the plan to bring Nathan and one or two other developmentally disabled persons into their home would constitute a violation of Rule 16.1.  But they maintain that the outlines of this plan were disclosed early on to Mrs. Brown’s superiors and to the state officials in charge of applicable funding and that they approved of the plan as an appropriate solution to the housing needs of Nathan and the other boys, despite the apparent conflicts.  They further contend that by failing to object, and therefore allowing Mrs. Brown to continue her efforts to put the plan into effect, these officials implicitly sanctioned it, despite Rule 16.1.  As a result, grievants contend, she was placed in an untenable and unfair position when the plan was disapproved at the last minute, giving her no choice but to resign under compulsion in order to carry out her plan. 

 There is no direct evidence of affirmative approval by any Polk County person with authority that the prospective conflict of interest inherent in her plan was to be overlooked or excused by the County, except as to Nathan alone.  However, grievants  rely on several documents to support their contention that the appropriate county officials were aware of Mrs. Brown’s plan for Nathan and one or two other recipients of DD funds to reside in the Brown home and, at least implicitly, sanctioned it.

These documents include an October 17, 1997 memo from Mrs. Brown to the then Director of Human Services, Donna Middleton, in which Mrs. Brown outlined issues to be addressed in “developing adequate individualized supported living services for our son, Nathan Brown, in his home community.”  Such issues included a “needs assessment” for Nathan and NK and JW with their families, and “Exploration of housing options consistent with the identified needs and values.”  [Ex. U-2]  Copies of this memo were sent to Scott Anderson and the manager of developmentally disabled services in another county where NK was being cared for.  Between the lines it’s possible to detect a faint implication that Nathan, NK and JW might be housed together in some Polk County residence and that it might be the Brown residence.  Grievants, however, introduced no evidence that such an implication had been perceived by Mrs. Brown’s superiors or that they had approved it.

Next, grievants rely on a May 8, 1998 fax transmission from Mr. and Mrs. Brown to Donna Middleton, with copies sent to more than 50 other persons, including the families of NK and JW, the staffs of programs for the developmentally disabled at the state level and two other counties, as well as several school administrators.  This memo is more explicit about the Brown’s plan than the October 17, 1997 memo to Donna Middleton seven months earlier; but it is only exploratory.  It asserts that the Browns “can offer an interim, immediate, viable option now,…” for Nathan and JW to move into the Brown residence.  It goes on to assert that “we are very interested in cohabiting for an interim period, even years, with Nathan and [JW], but this is not the long term future for our son’s [sic] or for us.”  This communication concludes with a statement strongly suggesting that the Browns understood that their hope to have Nathan and at least one other DD recipient in their home was still very much in a formative, hypothetical stage:  “Again, no matter what, we remain committed to family directed support for our sons and for other families.”  (Ex. U-3, emphasis added.)

 This fax communication elicited a June 2, 1998, response from the state agency which administers funds for recipients of benefits for developmentally disabled persons, the Mental Health and Developmental Disability Services Division of the State Department of Human Resources.  That letter, addressed separately to each of the three involved families of Nathan, NK and JW, dealt principally with budget constraints. [Ex. U-4] 

This letter confirmed that the state benefits payable to each of the children were “portable” and would be payable to a provider in Polk County if an appropriate arrangement were made to move the boys back to their home county.  This was important to Mrs. Brown’s plan, which, to be feasible, depended upon sufficient funds for more than one DD benefits recipient in her home. It is clear, however, that at this time no definite plan for the three children to return to Polk County--and no specific plan as to their housing arrangements in that event--had been settled upon.  The letter concludes that “you [the three affected families] need to decide with the county who will assume responsibility for actual program development.  Options might include a contract with a traditional provider, a family directed/controlled model funded through family support, or other options.”  The focus of this letter is on payments to the provider of services whoever it might be, not the specific residential arrangements for the recipients of those services.

             Mr. and Mrs. Brown responded to this letter, thanking the author for confirming that the affected families should be involved in the final decisions regarding care of their children and stating that the confirmation of “portable” funding was “reassuring.”  This letter concluded with an ambiguous paragraph that grievants now contend shows their clear intention to have the other two boys in the Brown home when Nathan returned:

We look forward to having Nathan back in his home community with his friends and family, and to working collaboratively with others, and to truly implementing Self-Directed Individual and Family Support to achieve that goal. [Ex. U-5]

             I cannot conclude that these communications support grievants’ contention that the Browns’ plan to have another recipient of DD benefits in the Brown home when Nathan returned there was apparent to Mrs. Brown’s superiors in the Human Services Department or that these superiors, including Donna Middleton and Scott Anderson, had been advised of anything yet that would trigger concern over the county’s conflict of interest policy.

             The closest any of the various official communications comes to early recognition of the details of Mrs. Brown’s plan is a September 23, 1998 letter from Susan Prince, Regional Coordinator for the State Division of Developmental Disability Services in the State Department of Human Resources.  The focus of that letter is the continuing search for funding available for Nathan’s care in the Brown home.  Ms. Prince, in a discussion of "options to consider” suggests that the Browns explore “stepping up the timelines for having another child move in, this could create savings in staffing for your home, if the individual was a good match in term (sic) of support needs.” [Ex. U-7.]  This letter, however, was addressed to Mr. & Mrs. Brown as parents at their home address and does not indicate that copies were sent to any Polk County official. 

On cross-examination, Mrs. Brown admitted that she did not bring this letter to the attention of her superiors in Polk County; rather she only gave a copy to a new case administrator whom Mrs. Brown was “mentoring” in the agency and whom it was anticipated would be Nathan’s case administrator when he returned to Polk County.  This admission strongly suggests   that Mrs. Brown recognized that her plan implicated the County’s policy against conflicts of interest and that she was disinclined to do anything that would alert her superiors to the full scope of her plan for Nathan’s return with NK.

             In July 1999 the full outlines of Mrs. Brown’s plan and the fact that the plan implicated the County policy on conflicts of interest became apparent to her superiors.  In July 1999, Jeff Booren, Manager of Polk County Mental Health Services, became aware of Mrs. Brown’s plan to have Nathan and NK returned to Polk County and to be housed in the Brown residence.  He testified that he had been aware for some time of the plan for Nathan to return home but was not aware that NK or any other recipient of DD services would also be housed there.  At a July 19, 1999 administrative team meeting, he requested that Scott Anderson, Mrs. Brown’s immediate supervisor, look into the matter and report back his findings.  On that same date, Mr. Anderson sent Mr. Booren a memo stating that he had only recently become involved in the arrangements regarding NK and that “NK … is scheduled to move into Joy Brown’s home before the end of July.”  This memo raised “the question of conflict of interest or county policy in regards to a county employee renting out her home, or letting her home be utilized in this manner.” [Ex. C]

Upon further investigation, Booren discovered that Mrs. Brown had been using her official position to affect the state and county system of support for the developmentally disabled in order to carry out her plan for Nathan and NK to receive care in the Brown residence.  For example, since the removal of NK from his existing custodial setting in Lane County would reduce the financial resources received by that setting where several wards were under care, Mrs. Brown sought to accelerate the movement from Portland to that facility of another developmentally disabled client in order to replace NK in that facility and preserve its funding amounts.

             Accordingly the matter was promptly brought to the attention of Booren’s superior, Marsha Clark, Director of the Human Services Department.  She called a meeting on July 29th in her office which included Mrs. Brown, Mr. Booren, Scott Anderson and another Human Services employee “to discuss the conflict of interest issues surrounding your desire to provide room and board and supported living services in your home to clients of County’s Development Disabilities Program.”

Ms. Clark summarized this meeting in a memo to Mrs. Brown the next day.  This memo unambiguously stressed that “Having client’s reside in your home is a conflict of interest and creates a dual relationship between you and the client.”  [Exs. D & U-14]  This memo went on to note that having Nathan receive county services in the Brown home was also a violation of the County’s conflict of interest policy but that the County would be amenable to negotiating some safeguards against abuse of Mrs. Brown’s official position so that Nathan could return to his family residence and continue receiving DD benefits.  Significantly for the issue in this case, this memo stressed that: 

To continue your employment at Polk County Mental Health you cannot proceed with moving clients into your home.  You can, of course provide a residence for your son providing all conflicts of interest issues surrounding that arrangement are disclosed and resolved. [Exs. D & U-14]

            Matters then came to a head very swiftly.  Less than a week later, Mrs. Brown responded on August 6th with a reply memo contending that “I see no violation or conflict of interest,” and implying that she would continue to seek ways for NK to join Nathan in the Brown home. [Exs. E & U-15]  Ms. Clark responded on August 9th, emphatically reiterating that “You are hereby directed to immediately cease plans and development to move NK into your home.”  (Original emphasis.)  This memo further directed Mrs. Brown “to immediately contact Jeff Booren and begin to disclose and resolve the conflicts of interest that may be a result of your son residing in your home.”  [Exs. F & U-16]

             Mrs. Brown responded to this directive the next day, August 10th asserting that she had “withdrawn, as directed, from further planning for Nethaniel (NK].”  But, somewhat contradictorily, she went on to assert that “I see no violation or conflict of interest in having Nathan and Nathaniel live in our home while I remain an employee of Polk County.”  [Ex. U-17]  That same morning, however, despite having assured Marsha Clark that she had stopped planning for NK to join Nathan in the Brown residence, she sent an e-mail asserting quite the contrary intention to various state officials involved in the funding for care of Nathan and NK.  She did not send it to her superiors in Polk County.  This e-mail was unrepentant regarding the conflict issues addressed in Marsha Clark’s memo of the day before; it asserted in part: 

Regardless of the directives below[4], prior plans have not been changed nor can they be rescinded. … My fear is to not proceed means Nathan will never move home… This plan we all developed is right for Nathan, for us, and I strongly believe, for others including Nathaniel [NK] and his family… [Ex. H.]

Upon receiving this e-mail, Ms. Prince called Marsha Clark to advise her that she believed Mrs. Brown was lobbying the state agencies in an effort to undercut Ms. Clark’s directives regarding the conflict; she sent Ms. Clark a fax copy of this e-mail.  Accordingly, Marsha Clark convened another meeting on the conflicts issue two days later on August 12th, at which Mrs. Brown remained adamant that she would continue to seek to have her son and NK cared for in the Brown residence regardless of that arrangement’s violation of the county conflict of interest policies.  Ms. Clark followed up this meeting by clarifying in an August 17th memo that the original plan to have both Nathan and NK reside in the Brown residence could proceed if Mrs. Brown were to resign from Polk County employment.  This memo also stressed, however, that if she resigned and the plan did not then work out, Mrs. Brown could request reinstatement, but that the county “is under no obligation to honor the request.”  [Exs. J & U-23]

On that same date, at a meeting that included Marsha Clark and Jeff Booren, Mrs. Brown submitted to them a typed document stating:

I am hereby tendering my resignation from employment with Polk County and as required by the County, under protest, in order for my son and his friend, Nehaniel Kurz [NK] to receive CSB services in our home…  [Exs. K & U-24]

           Mrs. Brown added a handwritten note to this resignation, adding that it would be effective immediately and was “due to duress.”  Ms. Clark added another note, that the resignation would be effective the day before NK moved into the Brown residence, then planned for October 1st.  Mr. Booren sought to dissuade Mrs. Brown from resigning in hopes that some way could be found to resolve the conflict over Nathan’s return to the Brown residence and some solution found for NK’s return to Polk County in a different residential arrangement.  Mrs. Brown, however, insisted on submitting her resignation at that time, to be effective the day before NK was moved into the Brown residence on October 1st.[5]

             The preponderance of the evidence is that no Polk County official with authority to waive the County’s personnel rule respecting conflicts of interest knew of Mrs. Brown’s specific plan to have Nathan and NK placed in the Brown residence until July 1999.  The preponderance of the evidence is further that no such Polk County official approved of the plan as it applied to NK.  Further, the preponderance of the evidence is that Mrs. Brown submitted her resignation on August 17th because she recognized that the only way her plan to have both Nathan and NK placed in the Brown residence--a plan which was scheduled to come into fruition within a few weeks—was promptly to resign her Polk County position, in light of the unambiguous direction she had received from her superiors respecting the application of the county’s conflict of interest policy. 

Had Mrs. Brown elected to forego having NK placed in her home, the County was receptive to working out safeguards against abuse of the conflict involving a family member and having her employment with Polk County continue, despite the actual conflict with respect to Nathan.  For her own personal reasons, however, Mrs. Brown elected to go forward with the full plan for Nathan and NK at the expense of her job.[6] 

  IV.  Findings.

1.           Joy Brown resigned her employment with Polk County voluntarily for personal reasons.

2.          Joy Brown’s plan for Nathan Brown’s and NK’s residential arrangement had not been previously approved by her superiors or any other official of Polk County with appropriate authority.

3.          Had Mrs. Brown proceeded with her plan for residential arrangements for Nathan and NK, she would have been in violation of Polk County Personnel Rule 16.1 in that the arrangement would tend to impair her independence of judgment in the performance of her official duties.[7] 

4.          Polk County’s declining to reinstate Joy Brown following her resignation was not a violation of any 
Polk County personnel policy or any other law.

5.          Polk County did not foster or create any condition that would constitute a hostile employment environment for Joy Brown.

6.          Polk County acted within the scope of its proper powers under Article II of the collective bargaining agreement, Management Rights, in declining to reinstate Joy Brown after her resignation.

7.          This arbitrator has jurisdiction to resolve this grievance under the applicable collective bargaining agreement.

IV.     Award.

1.          This grievance is dismissed.

2.          Pursuant to Article XII, Section 4 of the Collective Bargaining Agreement,   each party shall bear one-half of the arbitrator’s fees and expenses.[8]

Dated this 17th day of November, 2000

 

 

 

 

David E. Pesonen, Arbitrator

 

[1] At the end of the hearing a copy of the applicable collective bargaining agreement was produced and will be deemed Respondent’s Exhibit M.

[2] During this arbitration hearing, counsel for the parties represented that other litigation in State and Federal Courts, growing out of the same circumstances at issue in this dispute, was proceeding independent of this grievance procedure and was being prosecuted by counsel other than Ms. Hassler and Mr. Doyle.  Both counsel in this arbitration claimed not to be fully informed of the status of the other litigation.  Therefore it is not clear to me what effect the other litigation may have on the enforceability of any arbitration award in this proceeding.  At least for purposes of my jurisdiction, however, the fact that the parties invoked and followed the stepwise dispute resolution process under Article XII of the contract gives this arbitrator jurisdiction to decide this case.

 

 

[3] Initials were used in most written communications referring to develop- mentally disabled children to protect their and their families’ privacy.

[4] The e-mail attached summaries of the various memos discussed above regarding the meetings on July 29th and the August 6th and 9th communications to Mrs. Brown from Marsha Clark.

[5] Mrs. Brown was also advised around this time by the local AFSME Shop Steward that she should defer her resignation and that the County would be under no obligation to reinstate her if she resigned.

[6] The record does not reveal whether the plan to have both boys in the Brown home actually matured.  At the time of this arbitration hearing, NK did not reside in the Brown home.

 

[7] A more comprehensive policy than Rule 16.1, applicable only to the Human Services Department, was in draft review from about 1997 and was finally adopted in the summer of 1999.  Grievants contend that it was directed specifically at Joy Brown.  It would explicitly have precluded the arrangement for Nathan and NK that Mrs. Brown had sought to carry out.  Since Rule 16.1 is sufficient grounds for the county’s action, however, it is not necessary to address the issue of any conflict under the Human Services Department’s more specific rules.

 

[8] An itemized statement of fees and expenses will be submitted to the parties under separate cover.

 

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