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Title: City of Sumner and Sumner Police Guild
Date: January, 2001
Arbitrator: Jack Calhoun
Citation: 2001 NAC 113

Sergeant Bateman back to determine if he had given an order, had he been Officer Nikolao.

            Officer Strader believed there was a problem of communication.  Sergeant Batmen should have been clear in his conversation with Officer Nikolao.  At no time was there hostility expressed during the conversation.  At no time did Bateman say, “This is an order.”

            Prior to the incident that occurred between Sergeant Bateman and Officer Nikolao, there was no written policy regarding off-duty employment by police officers.  Since the incident, the parties have bargained such a policy.

            Officer Nikolao believed that, since he was off duty and not performing duties as a police officer, he was entitled to more than Sergeant Bateman’s words, “I need you to come in.” If he had been on duty he would not, and has not during his six years as a police officer, expected a superior to preface a direction with “This is an order.”   Police supervisory personnel do not preface their on-duty directions with words such as, “This is an order.”

            During the initial investigation of Officer Nikolao’s at-first refusal to report to work, the City failed to interview him.  Chief of Police Reisz remanded the investigation to Lieutenant Tucker, who had performed the first investigation. Officer Strader was not interviewed during the investigation.  Lieutenant Tucker interviewed Officer Nikolao and wrote a report to the Chief recommending discipline be imposed on Officer Nikolao over the October 14, 1999 incident.

The November 14, 1999 incident.

            The Sumner Police Department is organized, for patrol purposes, into three squads, A, B and C.  Each squad has a supervisor, usually a sergeant, and up to three officers.  Sergeant Backus, Officers Dorr, Nikolao and Engle comprise the B Squad and normally work from 11:00 p.m. until 7:00 a.m.

            On November 14, 1999, Sergeant Backus was not on duty.  He was working his part-time job at a local automobile dealership.  Several of the Sumner police officers had worked part-time at the dealership at one time or another.  It was a common practice for on-duty officers to visit off-duty officers who were working at the dealership.  The visits were social in nature and not related to police work for the most part.  On occasion, however, an on-duty officer left the dealership to respond to his police duties when he received a call on his portable radio.

            Chief of Police Reisz has held his position with the City for five and one-half years.  When he came to the City as Chief of Police, there were no policies or procedures, or disciplinary records kept.  He began setting policies and procedures.  Prior to the November 14, 1999 incident, he had been hearing reports of sloth and laziness on the midnight shift, the B Squad’s shift.  He had heard that the officers on that shift had not been performing up to standard.  They were not doing their job.  Sometimes be believed members of Squad B spent an entire shift engaged in activities that were not related to their work.  He and Lieutenant Tucker had reviewed radio logs and concluded there was little activity on the midnight shift, except for Officer Engle.  There is no evidence that Chief Reisz had done anything to relate his concerns to members of Squad B or to its supervisor, Sergeant Backus.

            Officer Dorr, who has 15 years of service, was the senior officer on duty on November 14, 1999.  He and Officer Nikolao spent approximately one hour, from approximately 12:30 a.m. until 1:30 a.m. visiting with Sergeant Backus at the automobile dealership.  Officer Engle was engaged in patrol duties.  Officers Dorr, Engle and Nikolao were the only officers on duty at the time.  Officer Dorr was the shift supervisor.

            At 12:31 a.m., Officer Engle saw suspicious activity at Weber Meats, a local slaughter house, and called it in on the radio to the dispatcher who repeated it.  The activity involved three men in a pickup truck with a trailer in an unlit area.  Officer Engle provided dispatch with the license number of the truck and trailer before he left his car.  A record check of the three men was run and it showed one was on active probation, one had a suspended driver’s license and one was clean.

            Officer Engle was at Weber Meats for 14 minutes.  Based on his training and experience, he expected Officer Dorr or Officer Nikolao to drive by the location to see if he needed assistance.  He expected them to do so because he had called in and reported a suspicious situation during the early morning hours with three men involved, one of whom was on active probation.  When neither officer came by, he cut his call short and left, but he probably would not have done more than what he did even if one of the other officers had come by.

            Officer Engle did not ask for backup when he called in from Weber Meats, but he could have done so at any time.  He was in communication with dispatch several times, and he could have waited for backup.  The dispatcher could have sent one of the other officers to backup Officer Engle, or Officer Engle could have asked dispatch to send someone to his location.  Both Officers Dorr and Nikolao have always covered him when he asked them to do so.

            Officer Engle did not ask for backup because he believed it to be basic police work to have fellow officers back him up in situations like the one he was in.  Not all officers handled their calls the same way.  Not all officers ask for backup the same way.  It is discretionary with the individual officer how he acts.  Officer Engle would have backed up any other officer who had been where he was.

            There is no written policy in the Police Department regarding officers backing each other up. It is a long practice that domestic violence calls are responded to by two officers.  There have been officers who went to Weber Meats who did not ask for backup.  There was no policy, written or verbal, that said calls to Weber Meats required two officers.  There is no such policy for any place in the city. Since he became Chief of Police, Reisz has had the understanding that officers not otherwise engaged would roll by any other officer who had pulled someone over, however, he had not issued such a policy.

            Lieutenant Tucker is second in command of the Police Department.  He has held a part-time job at the local automobile dealership for two years and works there three or four times each week.  When he is at this part-time job, other officers come by and visit with him on a regular basis.  He has never told any of them not to visit with him. There existed no rule or policy that prohibited such visits.  When visiting him, officers leave on their own when they think it necessary to respond to police business.  He has never had to tell them to go.  At times, visits lasted for over half an hour.

            When Officer Engle made his call to dispatch that he was at Weber Meats looking into suspicious activity, Officers Dorr and Nikolao were visiting with Sergeant Backus at the automobile dealership. Officer Dorr did not hear the radio transmission, but Officer Nikolao did hear it.  Sergeant Backus did not recall anything about the incident.

            When Officer Nikolao heard Officer Engle call from Weber Meats he did not go to the location because he did not believe Officer Engle was in any danger.  Officer Nikolao had been to Weber Meats on suspicious vehicles in the past himself.  He had been there on routine patrol and did not call for backup. When he heard the call from Officer Engle, it did not indicate that Engle was in danger.  Based on his own experience at Weber Meats, Officer Nikolao believed that Officer Engle had contacted people who were dropping off livestock, which he knew happened because he had seen it.  He was even more convinced people were dropping off livestock when Officer Engle ran a check on the trailer plate.

            When Officer Nikolao did not hear any tension in Officer Engle’s voice, he was satisfied no potential danger was present.  Officer Engle was at Weber Meats for 14 minutes.  At no time during his communications, did Officer Nikolao hear any indication of tension in his voice, or any indication he was in danger.

            At 1:40 p.m. the same morning, Officer Nikolao drove by Officer Engle as a courtesy and without a request by Officer Engle for backup.  He did another drive by of Officer Engle at 2:07 a.m.  Officer Engle has requested that Officer Nikolao back him up in the past and Officer Nikolao has done so, and he has done roll-bys on traffic stops Officer Engle has made.

            Officer Nikolao has never been instructed that two officers need to go on Weber Meats calls.  No red flags were raised in Officer Nikolao’s mind when Officer Engle called in about the Weber Meats activity.  If there had been, he would have responded.

            Officer Dorr said he did not remember hearing the call on his portable radio when he was visiting at the automobile dealership with Sergeant Backus.  It worked when he went on shift and his radio was on.  If he had heard the call, he would have responded by backing Officer Engle up.  Officer Dorr knew of no policy, however, that stated how cover was to be done on Weber Meats calls.  Had he heard the call, he would have directed Officer Nikolao to respond or he could have gone himself.  A number of officers have had trouble with their portable radios.  At times the transmission does not come through.           

            When Chief Reisz found out about the November 14^th incident, he appointed an outside police officer from the City of Puyallup, Commander Collyer, to investigate the matter.  In addition to the November 14^th incident, the Chief wanted Collyer to look in into the command climate surrounding Squad B.

            Commander Collyer did his investigation and wrote a report to Chief Reisz concluding that Officer Nikolao should be disciplined for failing to respond to Officer Engle’s call because he violated office-safety protocol.  He determined that Officer Nikolao was standing close to Sergeant Backus and Officer Dorr when he heard the transmission. Collyer stated that if Sergeant Backus heard Officer Engle’s call and yet failed to order either Officer Dorr or Officer Nikolao to assist Engle, Sergeant Backus would have been in violation of police policy.  He also concluded that Officer Dorr would have violated policy if it could be proved he heard Officer Engle’s transmission.

            Under his recommendations to Chief Reisz, Collyer stated that discipline was warranted for Sergeant Backus because he allowed Officers Dorr and Nikolao to spend an inordinate amount of time away from their duties while visiting him at his off-duty job.  Collyer had no recommendation for Officer Dorr.  He said he could not prove Dorr was aware of Engle’s situation at Weber Meats, although he, Collyer, did not believe Officer Dorr was unaware of it.

            Commander Collyer also included in his observations, opinions and recommendations regarding the general behavior of Squad B.  He concluded, based on extensive interviews with officers, sergeants and dispatchers, that personnel in the Police Department had pronounced negative feelings about the performance of Squad B.  The negative aspects of Squad B’s performance were carried out with full knowledge of Squad B’s sergeant, Sergeant Backus, other employees believed.

            In Collyer’s opinion, the perception of the performance of Squad B by other employees was very negative and it had an impact on the morale of the Department.  Collyer cited examples of unacceptable behavior by officers under Sergeant Backus’ supervision and commented that such behavior occurred with Sergeant Backus’ knowledge.  In his concluding paragraph of his opinion of the command climate of Squad B, Commander Collyer stated:

It is my opinion that the members of Squad B are not purposefully refusing to provide routine back-up and drive-bys of Officer Engle when he made self-initiated contacts.  I believe that officers of Squad B do not provide the back-up because their supervisor does not require it.  The activity of the squad negates the argument that they are too busy doing their own activity to assist Officer Engle.

            Commander Collyer testified he recommended discipline for Sergeant Backus and Officer Nikolao, but not for Officer Dorr.  However,  he later came to realize Officer Dorr was in charge of the shift and should have been patrolling rather than talking.  Collyer went on to say the policy manual does not state when officers are to backup each other, radios do not work all the time and at times one radio will work and another will not.  He said Officer Dorr’s radio may not have picked up the transmission.  He said if Officers Dorr or Nikolao had been on calls at the time of the Weber Meats incident, he would not have expected the dispatcher to break one of them off his call to backup Officer Engle.  Officer Engle would have had to stand by and wait until a backup was available, or solo on the call.  Collyer would not have expected the Sumner dispatcher to ask Puyallup Police to come help Officer Engle at Weber Meats.

            Chief Reisz used Commander Collyer’s report and decided to impose discipline on Officers Dorr and Nikolao.  He suspended Dorr for four days.  He issued a written reprimand to Officer Nikolao over the October 14^th incident that had been investigated by Lieutenant Tucker, and suspended Officer Nikolao for two days for the November 14^th incident.  He did not talk to Officer Strader before he decided to punish Officer Nikolao for the October 14^th incident.  He did not believe Officer Dorr did not hear Officer Engle’s transmission.

SUMMARY OF THE CITY’S POSITION

            The City contends the discipline imposed on both Officer Nikolao and Officer Dorr was justified and within reason, given the gravity of their offenses.  Both were on duty along with Officer Engle on November 14, 1999.  Officers Dorr and Nikolao were at the auto dealership for an hour visiting with Sergeant Backus while Officer Engle was patrolling without assistance.

            When Officer Engle notified dispatch of his location and dispatch repeated it, both Officers Dorr and Nikolao were listening to their portable radios.  The broadcasts were clearly audible to them.  Neither responded to a call that requested backup.  It is an officer’s duty to respond to radio transmissions.

            Officers Dorr’s and Nikolao’s conduct violated established ethical standards and it deviated from the accepted practice of the Sumner Police Department to conduct roll-bys or provide backup assistance to other officers.  Their conduct constitutes grounds for discipline.

            There is no evidence to support the argument that Officer Dorr’s radio was not working.  The radio log showed it worked before and after the Weber Meats incident.

            Officer Nikolao made no effort to backup Officer Engle because he did not believe Officer Engle was in danger.  His belief is contrary to every other witness’s testimony and should be considered in that light.  His testimony is self-serving and does not represent appropriate conduct.  His conduct was contrary to accepted training and practices.

            The discipline imposed on Officer Nikolao was supported by the evidence and was appropriate given the officer-safety issue that was raised.  Moreover, the level of discipline was appropriate because Officer Nikolao has been disciplined previously for rules violations and failure to return to work.

            With respect to Officer Dorr, all witnesses, including Officer Nikolao, testified an acting sergeant who did not monitor the radios or provide backup is derelict in his duty and has deviated from the accepted practices of the Police Department.  The level of discipline given Officer Dorr was appropriate given the officer-safety issue involved.  Officer Dorr had been disciplined previously over other incidents.

            All officers who testified said a superior officer expects his direction to be followed without having to use the word “order.”  Officer Nikolao expected two standards: one while on duty, and another when not on duty.  His position amounts to rationalization for his conduct in refusing to report as told by Sergeant Bateman, and is contrary to known and accepted standards for all police officers.

SUMMARY OF GUILD’S POSITION

            The Guild contends the City did not have just cause to discipline Officers Dorr and Nikolao over the incidents in question.  With regard to the letter of reprimand issued to Officer Nikolao, the City failed to sustain just cause and failed to meet the burden necessary in the areas of notice, fair investigation, and proof that a violation of a rule occurred.

            There was no written policy that stated how off-duty employment and police duties were to  co-exist.  The City bargained an off-duty employment policy after the incident involving Officer Nikolao occurred as a remedial measure.  The policy now makes police duty primary to any other type of employment.  There was no notice that the likely consequence of not being available to work an extra shift would result in discipline.

            There was not a full, fair and complete investigation into the October 14^th incident to determine if Officer Nikolao was guilty.  During the initial investigation he was not interviewed to get his side of the story.  Instead of throwing the whole matter out, the Chief remanded it to the same person who had already concluded Officer Nikolao was guilty.  The City also failed to interview an officer who was present and heard Sergeant Bateman’s telephone call to Officer Nikolao.

            The City failed to establish that Sergeant Bateman gave an order and that Officer Nikolao knew he had received an order to report for duty.   While Sergeant Bateman thought Officer Nikolao  should have known he was being ordered to report for duty, Officer Nikolao did not know.  In fact, he called Sergeant Bateman back to determine if an order had been given.

            During the November 14^th incident, Officers Dorr and Nikolao were visiting Sergeant Backus at this off-duty employment site.  Sergeant Backus did not hear the call made by Officer Engle.  No discipline was meted out to Sergeant Backus as a result of not hearing the call even though he was present at the same location and time for which Officers Dorr and Nikolao were disciplined. 

            There was no notice to either Officers Dorr or Nikolao that any officer who goes to Weber Meats receives automatic backup.  No policy exists that states backup occurs for activity at Weber Meats.  Different officers would respond differently based on their training, experience and knowledge, and/or the training, experience and knowledge of the officer involved in the contact.

            If the City wanted to establish a policy that officers automatically backup other officers who make contacts in places like Weber Meats, or in similar situations such as those present in this case, it should have trained all police officers and provided them a written policy upon which they could rely and operate.  In this case, the City tried to create a policy where none existed.

            The City did not conduct a full, fair, complete and objective investigation into the incident prior to disciplining Officers Dorr and Nikolao.  Commander Collyer did nothing more than what he was directed to do by Chief Reisz and Lieutenant Tucker.  The investigation was a witch hunt as evidenced by Collyer’s report on the command climate in Squad B.  The Chief had become unenamored with the comradery of Officers Dorr and Nikolao and Sergeant Backus, and used the Weber Meats incident as a catalyst to investigate Squad B and to alter what he perceived to be behavioral problems and morale problems therein.

            There was no proof that Officers Dorr and Nikolao committed the acts as alleged.  Officer Dorr did not hear Officer Engle’s radio call. That was the conclusion Commander Collyer reached.  Officer Dorr stated that if he had heard the call, he would have responded to cover Officer Engle.  Yet, Chief Reisz decided that Officer Dorr was at fault for not hearing the call and deserved to be disciplined.  Chief Reisz replaced the investigator’s conclusions with his own in on effort to bolster the discipline he decided was due Officer Dorr regardless of what the facts were.

            With regard to Officer Nikolao, although he heard Officer Engle’s call, the City failed to establish that he violated any policy because there was no specific policy that says an officer must automatically respond to cover another officer at Weber Meats.  There is not one bit of evidence to show a history or practice of disciplining officers for failing to cover another officer at Weber Meats.  There is no evidence to support that there is any policy that dictates that an officer must cover another officer at Weber Meats.

            If the City concluded that Officer Dorr needed to be disciplined for not hearing the call from Officer Engle, off-duty Sergeant Backus should have been disciplined as well.  Officers Dorr and Nikolao and Sergeant Backus were all in the same area, but only Officer Nikolao heard the call.

            Finally, the Guild argues the City should have used progressive discipline on Officers Dorr and Nikolao.  At most, a letter of reprimand should have been given them.

OPINION

            The reaction of Police Department management to the October 14, 1999, incident when Officer Nikolao at first refused to report for an extra shift seven hours later is perplexing in light of the fact Officer Nikolao called Sergeant Bateman back a few minutes later and said he would come to work if he was ordered to do so.  The fact that Sergeant Bateman, during the first conversation, did not make it unmistakenly clear to Officer Nikolao that he was to report for duty at 11:00 p.m., is evidenced by the testimony of both Sergeant Bateman and Officer Nikolao.  Sergeant Bateman acknowledged he never used the word “order” in trying to persuade Officer Nikolao to report for the extra shift.

            Much was made of the absurdity of a supervisor having to precede each and every direction to a subordinate with the term, “That’s an order.”  That absurdity disappears, however, when there is a genuine question in the mind of the subordinate about the efficacy or necessity of the direction, especially when the subordinate is not on duty in the quasi-military environment of a law enforcement organization.  It behooved Sergeant Bateman to make certain Officer Nikolao understood in no uncertain terms that he was being ordered to come in.  He failed to do so until Officer Nikolao called back after he had talked to a Guild representative.

            At the time of the October 14^th incident, no policy was in existence that informed officers, who held secondary jobs, that they had to set aside all commitments on their off-duty time and report for extra work in nonemergency situations without questioning the need for the extra work or suggesting alternatives.  It was after the incident in question here that a secondary employment policy was promulgated.

            Perhaps even more perplexing was the Department’s failure to interview Officer Nikolao before the investigation report was made final concluding and recommending that he be disciplined for failing to follow directives of a supervisor.  Also of importance was the failure to interview a witness who heard Sergeant Bateman’s conversation with Officer Nikolao, Officer Strater.  Officer Strader said he too would have been confused by the ambiguous phrasing Sergeant Bateman engaged in when he was talking to Officer Nikolao.

            There was no notice to Officer Nikolao that the consequences of his not being available would result in discipline.  The investigation following the incident was flawed.  There was no proof the officer was insubordinate because Sergeant Bateman’s use of the language was ambiguous.  Officer Nikolao did not know he had received an order as evidenced by the fact he checked with his Guild representative and then immediately called Sergeant Bateman.

            Prior to the November 14, 1999 incident there existed, according to the evidence on the record, including the testimony of Chief Reisz, “a command climate” problem in the Police Department among Squad B members.  He had heard officers were not performing their duties in the manner and to the degree of  attentiveness the Chief expected of them.  Officer Engle was an exception in the Chief’s mind.

            There is no evidence that the Chief’s concern over Squad B’s performance was ever communicated to the members of the squad.  He and Lieutenant Tucker had looked at radio logs and concluded that little activity took place when Squad B was on duty, except for Officer Engle.

            After the November 14^th incident, Officers Dorr and Nikolao were disciplined.  Officer Dorr testified he did not remember hearing the radio transmission.  Officer Nikolao heard the transmission, but decided it was not necessary to respond.  Sergeant Backus, according to the investigation report, remembered nothing about the incident.  Officers Dorr and Nikolao were disciplined for not responding to Officer Engle’s contact, not for spending an hour visiting with Sergeant Backus.  The Department had condoned such visiting for a number of years.

            Again, based on elementary principles of just cause, it is difficult to understand the Department’s reaction in disciplining Officers Dorr and Nikolao.  Sergeant Backus was present at the same location and in close proximity to Officers Dorr and Nikolao when the radio call was made, yet he was not disciplined.  That fact calls into question the reasonableness of the discipline to Officers Dorr and Nikolao.

            There was no notice to the officers in the form of a policy or rule, verbal or written, that required all contacts at Weber Meats receive automatic backup and cover.  They did not know nor had they been told that such a policy existed.  If the Department had wanted to establish a practice under which officers cover each other under certain circumstances or at certain locations, it could have done so in the form of a policy or rule.

            Officers have some discretion as to whether they will drive by another officer when he has stopped someone.  When Officer Nikolao heard the radio transmission, he reasonably concluded there was no reason to respond.  There was no anxiety or stress in Officer Engle’s voice, nor did Officer Engle once ask for backup.

            Officer Nikolao may well have been remiss in his duties, but not because he did not respond to Officer Engel’s contact.  It was because he, along with Officer Dorr and Sergeant Backus, spent an hour visiting. That behavior, however, was acceptable to the Department.  Lieutenant Tucker  permitted and condoned lengthy visits from officers when he was working at the dealership. If discipline was to be imposed for prolonged visits, it should have been imposed on all who participated in a nondiscriminatory fashion, however, the discipline handed out to Officers Dorr and Nikolao was for not responding the Officer Engle’s call, not for visiting with Sergeant Backus.

            Commander Collyer devoted a substantial part of his investigation report to the command climate of Squad B.  After quoting numerous unidentified persons who had made disparaging comments about Squad B and its members, he concluded by suggesting that Sergeant Backus was largely responsible for the deficiencies he discovered.  He even suggested that Sergeant Backus be placed “on a period or heightened supervision.”  Yet, with respect to the November 14^th incident, he was treated differently, which his being off-duty cannot be used as an excuse.  He was the squad’s sergeant.  He could have ordered either or both officers to go to Weber Meats.  If the Chief believed that Officer Dorr heard the call, he must have concluded Sergeant Backus heard it because all three were in close proximity.

            It is a fundamental principal of the just cause standard that employees are made aware of the kind of behavior that will lead to discipline.  No one can be expected to abide by rules that have not been communicated.  If Chief Reisz had wanted and expected each and every call made by an officer to be backed up by another officer, he should have made that known to all the officers.  As long as officers have some discretion with respect to backing each other up, as was the case here, they cannot be disciplined for exercising that discretion even if all or most of their colleagues would have acted differently.

            In summary, I have concluded, based on the evidence on the record, that the City did not have just cause to issue a letter of reprimand to Officer Nikolao over his refusal to report to work; the City did not have just cause to suspend Officer Nikolao without pay for two days for failing to provide backup to Officer Engle; and, the City did not have just cause to suspend Officer Dorr without pay for four days for failing to provide backup to Officer Engle.

            The 2000-2001 agreement, which the Guild argues is applicable to this dispute was not executed by the parties until May of 2000.  The grievance-prompting events, i.e., the notices to Officer Dorr and Nikolao of the discipline to the imposed on them were dated April 14, 2000.  The 1997-1999 agreement, which was in effect at the time of the event for which Officers Dorr and Nikolao were disciplined, expired after December 31, 1999.  The facts and occurrences, upon which the City’s decision to impose discipline was based, happened during the 1997-1999 agreement and prior to its expiration.  Since the facts or occurrences arose before the expiration of the 1997-1999 agreement, and the action taken by the City that prompted the grievances was after its expiration, but affected rights that were present under the 1997-1999 agreement and which survived the expiration of the remainder of the agreement, it is the 1997-1999 agreement that is applicable to the instant dispute.            AWARD

            The grievances are sustained.

            The City of Sumner is hereby ordered to: (1) remove the letter of reprimand from Officer Nikolao’s records and files; (2) make back pay to Officer Nikolao for the amount he would have been paid had he not been suspended two days without pay; (3) make back pay to Officer Dorr for the amount he would have been paid had he not been suspended four days without pay; and (4) make Officers Dorr and Nikolao whole for any lost fringe benefits they suffered as a result of their suspensions.

            Dated this the _____ day of January 2001.

                                                                                    ____________________________________

                                                                                    Jack H. Calhoun

112-00WA

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