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Title: City of Ontario and Ontario Police Officers Association
Date: January 8, 2001
Arbitrator: William S. Rule
Citation: 2001 NAC 120

AMERICAN ARBITRATION ASSOCIATION
VOLUNTARY LABOR ARBITRATION

OPINION AND AWARD

In the Matter of Arbitration

Between

CITY OF ONTARIO

And

ONTARIO POLICE OFFICERS ASSOCIATION

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Issue: Termination

 

Grievant: Chris Alvarez

 

AAA Case 72 3900005200


Hearings Held
August 30, November 1, 30, 2000
303 "B" Street
Ontario, California

Impartial Arbitrator
William S. Rule
P.O. Box 272
Rancho Santa Fe, CA 92067

Appearances:       

For the City:

Steve A. Filarsky, Esq.
Filarsky & Watt, LLP
1441 Nineteenth Street
Manhattan Beach, CA 90266

For the Union:

Robert W. Krause, Esq.
Castle & Krause
28645 Old Town Front Street
Temecula, CA 92590

                                        Background

    The ONTARIO POLICE OFFICERS ASSOCIATION (Union) and the CITY OF ONTARIO (City) have had a collective bargaining relationship for a number of years.  Their current Agreement provides for a Grievance Procedure culminating in final binding arbitration (Jx 1).

    Christopher Alvarez (Grievant) had been employed by the City as a Police Officer for approximately four years.  On October 8, 1999, Grievant reported for duty without his sidearm and left the City after briefing without permission from a Sgt. or notification to Dispatch to drive to his home and get his sidearm in his black and white patrol unit.  Grievant was observed in the Rancho Cucamonga area by a Sgt. Britt who notified Watch Commander Lt. Stipes by radio. Dispatch called Grievant for his location which Grievant provided as being different than his actual location by several miles.  Grievant then called Lt. Stipes, asked for permission to go to his home to pick up some equipment, Lt. Stipes said he understood Grievant had already been home and Grievant said  he had not been home when he actually had been home.  As a result of this incident Grievant was placed on Administrative Leave and an Internal Affairs (IA) investigation took place. After the IA report was prepared and reviewed, the Chief of Police issued a  Notice of Intent to Terminate which was followed by a Skelly Hearing and an appeal to the City Manager. Grievant was subsequently terminated in January 2000.  A grievance was filed in a timely manner and denied by the City.

    When the parties were unable to resolve this matter between themselves, an Impartial Arbitrator was mutually selected through the American Arbitration Association to hear and to resolve the issue.  Hearings were held before the Arbitrator at which times both parties were provided a full opportunity to present evidence, to examine and cross-examine witnesses under oath and to argue their contentions.  Verbatim transcripts were made of the hearings and provided to the Arbitrator.  Both parties made oral summations of their positions on the record which was received by the Arbitrator on December 15, 2000.  The parties stipulated that there were no procedural problems in this matter, that it was properly before the Arbitrator for his decision and that the Arbitrator would retain jurisdiction over remedy in the event he found the termination had not been for just cause (TR 9-10).

                                     Issue

    The parties stipulated the issue would be stated as follows:

    1.  Was the termination of the Grievant for just cause?

    2.   If not, what is the appropriate remedy?  (TR 9-10)

                                Position of the Parties

                                    City Position

    The  position of the City may be briefly summarized as follows:

    The basic facts are not in dispute.  Grievant reported for duty the night of October 8, 1999 without his sidearm.  He attended briefing with an empty holster and did not report the lack of a gun to any supervisor.  When briefing was over Grievant went outside to his assigned patrol car, left the City and drove to his residence in Rancho Cucamonga in a marked black-and-white patrol unit with an empty holster but he had checked out a sub-machine gun.  He did not ask permission to leave the City.  He did not check in with Dispatch which,  with no call to the contrary,  had to believe he had not left the station.  Grievant's patrol unit  was seen by a police sergeant who was coming back from police related duties in the area.  The sergeant got the unit number and checked with the Watch Commander because the unit was out of the City.  Dispatch called the Grievant and Grievant gave Dispatch a false location in the City when he was actually outside of the City.   Lie number one.  Grievant then called the Watch Commander, sought permission to go to his home to get equipment, Lt. Stipes said I thought you had already been there and Grievant replied he had not been to his home when he had.  Lie number two.   Stipes told Grievant to come to the station and write a memorandum concerning the events that transpired after briefing.  The memorandum contained no explanation of his lie to Dispatch or to Lt. Stipes.

    Grievant was placed on administrative leave and an investigation was commenced.  The investigation established Grievant had left the City without permission to go to his home, had lied to Dispatch, had lied to Lt. Stipes and that the memorandum he was asked to write about the incident was not complete.  After the appropriate steps and hearings, Grievant was terminated for just cause.

    No other police officer would willingly work with a police officer who was a liar.    Grievant's late claim on the last day of hearing never made before that Officer Telen asked Grievant if he had permission while Cpl. Barron was standing there which somehow implies permission or mitigates his leaving is without merit.  Barron testified he assumed Grievant had permission from the Sgt. who was on duty that night and Telen was no longer a police officer in the City having moved to Fresno.

    Grievant is a second time offender having been previously suspended for eight days involving his being untruthful with another law enforcement agency.  With less than four years service and only a marginal employment record, termination can not be considered excessive.  Citation provided.

    For all these reasons and many more the grievance must be denied.

                                    Union Position

The position of the Union may be briefly summarized as follows:

    The evidence for the most part is not in dispute.  Grievant did give Dispatch a wrong location.  Grievant did leave the City without permission from a sergeant.  Both of these things were wrong.  Grievant just panicked but fully intended to immediately come clean when he got to the station but was simply not permitted to do so.  The important question to be considered is what put an officer in the frame of mind to make such errors in judgement.

    Grievant was under extraordinary scrutiny.  His mind was being fucked with and he was under a microscope.  The day to day stress kept building ever since he transferred to Sergeant Harris's shift.  Grievant's whole personality changed because of this stress as his wife clearly testified.     

    The night of the incident Grievant could not sleep during the day as he usually did because of the continuing build up of stress on his job.  He was taking  medication for a chronic cough, late getting up due to his wife being late coming home from her job and Grievant left the house in a panic because he could not find his duty weapon plus ever building job stress.  After the briefing and knowing he would be written up again if he asked permission, Grievant decided to take a chance and go home for his weapon.  Grievant didn't just leave.  He asked Officer Telen to cover for him, Telen asked Grievant if he had permission, Cpl. Barron heard him ask and Barron said nothing except you had better hurry.

    On the way Grievant tried to get his MDT to work to put him out of service but the darn thing won't work which caused him more stress.  He called his wife hoping she had found the weapon and could  meet him half way but she hadn't found it.  Grievant knew he had to go all the way home which added more stress.  He was at home for ten minutes or less but still couldn't find his gun.  He took his alternate weapon which won't fit in his holster.  He headed back into the City.  His MDT still won't work   By now Grievant was really spinning.

    He was asked for his 10-20 (location) and that caused more stress.  He gave a wrong location as a spontaneous response and it was incorrect.  He did not even have the capacity to form the intent to lie at that point but he did use poor judgement.  Next he called his Watch Commander (WC) to ask permission to go home to find the weapon. The WC  said that he already knew that Grievant had been home.  Grievant denied that due to stress and was ordered to come to the station.  Grievant came to the station ready to fess-up and take his lumps. The WC said write a memo and turn it in by the end of the shift and that is all we want to see of you for now.

    While any termination is difficult for the employee being terminated, in the law enforcement industry a termination for dishonesty is an economic death sentence which Grievant did not deserve on the basis of the record made and all the stress he was under for the last six or seven months.  Clearly Grievant made errors in judgement and should be appropriately penalized but not terminated after the proper consideration of all the circumstances in this matter.

                            Findings and Conclusions

    Some of the facts are not in dispute.   Grievant was a police officer with the City just under four years.  He received some four "attaboys" during his employment with the City and some additional  "attaboys" or certificates during his prior employment with the San Bernardino Sheriff's Department (TR 185-86, Ax 2-3).  His Performance Evaluations with the City show him to be Competent or average on a five level scale of Unsatisfactory to Outstanding (Ax 2). 

    The record is clear Grievant was given an eight day disciplinary suspension in the latter half of 1997 for an incident on April 19, 1997 when Grievant became intoxicated while off duty, identified himself as a police officer, took a female security officer into the woman's rest room, urinated in her presence  and subsequently lied to a San Bernardino Sheriff's Sergeant regarding his identification (TR 254-55,  Ex 64). 

    The Grievant contends that Sgt. Harris had written him up unreasonably for things for which others were not written up and that Harris told Grievant he was "on the edge" and something about "fucking with the Grievant" (TR 194-96).   The record is clear Sgt. Harris gave Grievant two Conduct Appraisal Reports and one written Verbal Counseling Memo in 1999 (Ex 64).  The first Report dated May 26 noted Harris had told Grievant on May 15 that he wanted overtime slips submitted in  a timely manner, that Harris received slips some six days late on May 25 and that this was a violation of Rules and Regs.  The second Report was dated May 21 and noted Grievant had been 45 minutes late for the start of his regular shift.  The written Verbal Counseling Memo was dated August 4 and notes a non-urgent incident when Grievant felt a need to speak with a supervisor, none of his shift supervisors were available and Grievant went to another shift supervisor who might or might not have been more sympathetic to Grievant's problem when the problem could have easily waited for the following day.  No grievances were filed regarding any of these write-ups (TR 204).

    While Grievant claimed other officers were not written up for being late getting overtime slips in for approval, the records does not establish that.  Harris warned Grievant to get his slips in, Grievant did not do so and was written up.  Grievant did not claim others were 45 minutes late for their shift and were not written up.  Grievant testified that when he went to Lt. Burger instead of waiting to see Lt. Stipes or Sgt. Harris later to straighten out a comp time problem, Burger spoke to Stipes about not taking care of his own problems (TR 35-7, 200-03).  The record persuades the Arbitrator that Stipes probably made the same complaint to Harris and Harris then issued the Memo to Grievant.  No line supervision ever appreciated an employee going around the boss when there was no urgent need to do so.  Harris did testify that Grievant was under more close scrutiny than others at the time, that Harris had been told by his superiors that Grievant was a problem to be watched and that Harris had had several conversations with Grievant about his performance (TR 34).  Harris testified he did not believe he had said anything to Grievant about fucking with him even though Grievant and his wife testified to the contrary (34-5).

    There is no dispute Grievant was assigned to the graveyard shift (9:00 pm to 7:00 am) on the night of October 8, 1999, that he reported for duty without his duty weapon, his holster was empty during briefing and that he did not report the missing weapon during or after the briefing (TR 15-6, 204).  Grievant then went out to the parking lot where Officer Telen commented on the missing weapon and Grievant told Telen he knew it was missing and that he was going home to get it (TR 27, 208, Ex 46).  Grievant testified at the final day of hearing for the first time that Telen had asked him if he had permission to go home with Cpl. Barron standing nearby but Grievant never mentioned Telen asking about permission in his Internal Affairs (IA) interview or apparently in any other meetings with the Chief or the City Manager prior to his termination (TR 230-31, 236-37, Ex 46).  Grievant testified at first he had not brought the permission statement before because he did not think it was important and later testified he had not brought it up because he did not want to "burn"  Barron (TR 231-2).  Telen did not testify at the hearing having left Ontario to be employed in Fresno (TR 237).  Cpl. Barron did testify he heard Grievant ask Telen to cover his beat,  that he was going home to get his duty weapon and Barron testified he assumed that Grievant had permission to go (TR 101, 102-03, 107-08,  231).   Barron did not testify he heard Telen say anything about permission nor was Barron cross-examined on this point.

    The record is clear that Grievant did not log on using the MDT when he left the parking lot, which Grievant agreed meant that Dispatch had to believe he was still in the station (TR 232-33).  Grievant did testify he had been having problems with the MDT in his unit but that he had not reported it because it was a common problem (TR 234).  Grievant apparently finally logged on at or near his home in Rancho Cucamonga (Ex 46). 

    The record is clear that Grievant's unit was observed outside the City by Sgt Britt around ten o'clock and that Britt informed WC Lt. Stipes who, after verifying Grievant did not have permission to leave the City, requested Dispatch to ask Grievant for his location (TR 46, Ex 1-5).  Grievant testified that he intentionally told Dispatch he was at Haven or Miliken and I-10 which Grievant testified was a wrong location some four miles from his actual location outside the City (TR 214, 217-18,  Ex 46, 65). 

    There is no dispute that Grievant then called Lt. Stipes and asked if he could have permission to go to his home to get his flashlight battery because the one he had was running low but Grievant did not tell Stipes about his missing weapon (TR 235).  The record is clear that Stipes said something to Grievant about believing Grievant had already been home and that Grievant said "No" (TR 215).   The record is clear that Stipes told Grievant to come to the station, that when Grievant arrived both Lt. Stipes and Sgt. Spinnato were standing and waiting for him and that Stipes told Grievant to write a memo about everything that happened after briefing that night and to turn it in to the Sgt. before the end of the shift (TR 116-17, Ex 46).

    Grievant wrote the following memo to Stipes that night:

"On 10/9/99, I was ordered by Lieutenant Stipes to write a memo concerning what I did after briefing on Friday, 10/08/99.  When I left briefing, I made arrangements with my wife to meet me near the area of Miliken and Foothill because I needed her to bring my duty weapon and spare flashlight battery.  I had forgotten to grab my duty weapon and I needed  my spare flashlight battery because the one that was in was low.  While en route to the area of Miliken and Foothill, my wife could not find my duty weapon.  I then drove to my house, located in Rancho Cucamonga, so I could retrieve the above equipment.  I apologize for any inconvenience this may have caused you or Sergeant Spinnato.  In the future, I will use better judgement and inform my supervisor prior to leaving the city." (Ex 11)     

    Not too surprisingly,  there is evidence that other officers have forgotten equipment in the past when reporting for duty and  presumably have either gotten permission to go get the equipment or just gone without permission (TR 115, 150).  While other officers may also have forgotten their weapons, there is no evidence of that in the record.  Grievant testified he had forgotten his duty weapon once before and his wife had brought it to the station for him (TR 205).

    An extensive IA investigation followed, as did the decision by Police Chief Scharf of his intent to terminate the Grievant primarily because he believed Grievant had lied (TR 46-55, 71-2, 76-90, 120-22, Ex 56-7).  Grievant was represented by counsel at his IA interview, as was his wife at her IA interview (Ex 46, 49).  Scharf testified that if Grievant had told the truth, he probably would still be employed (TR 122).  A Skelly Hearing was held, Scharf did not change his decision, two meetings were held with the City Manager and Grievant was finally terminated (TR 123-27, Ex 58-62).

    Grievant provided an extensive statement to Sgt. Duke as part of the IA investigation which Grievant testified was accurate (TR 188, Ex 46).  Grievant also testified at the hearing that it had been his intention to talk with Sgt. Spinnato and Lt. Stipes when he arrived at the station to explain his side of the story and explain what he did and why he did it (TR 189, 192).  Grievant testified he was not given that opportunity but was only told to write a memo about the events since briefing  which he did (TR 189, Ex 11).  In his IA interview in January 1999, Grievant made it very clear that he did not ask permission to go home to get his weapon because he had been told by Sgt. Spinnato he was under the microscope on his job and Grievant said, "I'm screwed either way.  I'm screwed if I bring it up to them and I'm screwed if I go home." (Ex 46).  Grievant also mentioned a Lt. Johnson telling Grievant to watch his p's and q's and that Grievant believed he had been punished for things for which he felt he should not have been punished (Ex 46). 

    At the hearing Grievant testified again with regard to the "microscope" comment by Sgt. Spinnato but at both the IA interview and at the hearing Grievant made it clear the conversation in which Spinnato may have used that term only related to the time Grievant was calling in to get a sick day off because his wife's grandmother was very ill and possibly near death (TR 119, 193-94, 237-38). 

    The record does not persuade the Arbitrator that Grievant was unfairly supervised or written up by Sgt. Harris or Sgt. Spinnato.

    Any contention that Cpl. Barron's failure to stop Grievant from leaving the parking lot and driving to his home out of the City without permission in any way excuses what Grievant did is totally without merit on the record made.  The primary responsibility of a Cpl. is to train officers (TR  99, 113, 147-50).  A Cpl. would only take over if a Sgt. were not available,  Sgts. were available that night and Barron was just another officer going on patrol.  Barron testified he assumed Grievant had permission to leave the City and was not challenged on that testimony.  The late testimony of the Grievant that Telen asked Grievant if he had permission, which Barron had to have heard,  is much in doubt.  Even Grievant did not testify he answered "No" to the question if the question was asked.

There is no question that Grievant was under considerable stress on the night of October 8.  He could not find his weapon and had to leave his house to race to the station in time for briefing with an empty holster and he did not know where he had left the weapon.  Grievant may also have had a cough, been taking over the counter medication for it and been awakened late because his wife came home late that evening, but that stress was minor compared to the missing weapon.  Grievant testified he had a routine of leaving his weapon locked in the trunk of his car to be sure his seven year son and/or a playmate could not get to it but Grievant did not follow that routine that night.  The fact Grievant was not driving his own car that night and had a rental because his car was being repaired does not change anything.  Grievant found his weapon the next morning in the front seat area of the rental car but that was certainly a stupid place to leave a weapon and the fact it was not his car really makes no difference.

    While both Grievant and his wife went to great extremes to try to maintain Grievant did not really lie to Dispatch or to Lt. Stipes but only provided misinformation, the record persuades the Arbitrator that Grievant lied as that term is commonly understood.  Grievant gave Dispatch a location in the City when he was actually some four miles away from that location and outside the City.  Grievant did that because he knew he was in trouble because he was outside the City having been home without permission and that he would be disciplined for that if it were known.  Grievant's claim he had given Dispatch incorrect locations in the past as had other officers does not help his case.  Even Grievant admitted the incorrect locations he and others may have given Dispatch in the past were measured in blocks and not in miles.

    Grievant did not just panic because of stress when he called Stipes and asked if he could go home to get his flashlight battery and then said "No" when Stipes said he thought Grievant had already been home.  Grievant called Stipes to cover his behind and to get another shot at finding the missing weapon.  When Stipes said he thought Grievant had already been home, Grievant just lied again to continue to avoid the consequences of this actions.  When Grievant arrived at the station and was ordered to write a memo about what happened, Grievant claims that was unfair.  Grievant felt Sgt. Spinnato should have just called him into the office and let him explain what happened.  As the IA investigation duly noted, there was nothing wrong with explaining in his memo anything that he wanted to explain.  Grievant did finally mention his missing weapon in that memo but still tried to cover his behind by explaining he had hoped his wife could find the weapon and meet him half way so he would not have to leave the City.  Grievant completely ignored his lie to Dispatch about his location and still claimed his need for his flashlight battery, which the record persuades the Arbitrator never was a need in the first place but only something he thought of to tell Stipes as the reason he had to go home,  when he didn't want to tell Stipes the real reason about not having his weapon.

    The Arbitrator must also discount Grievant's contention he did not grieve or go to his Union about the alleged harassment by Sgt. Harris or by Sgt. Spinnato because he did not want to make waves or because he was afraid to do so.  There is nothing in the record to sustain that contention.  In fact the record is clear that the Union was there for Grievant even before this incident.   Police Officer Associations this Arbitrator has dealt with in arbitrations over the years do not seem bashful or afraid to represent their members when their members have a reasonable complaint and seem to do a very good job of representation as they did in this case.  Grievant simply brought his troubles on himself and has no one else to blame for what happened.

    Cpl. Donald Mitchell with ten years in the Ontario Police Department and one and one-half years as a Corporal testified under cross-examination that he had never heard of an officer sneaking out of the City without permission, had never responded to Dispatch about his location with an intent to deceive and had never told Dispatch his location was miles from his actual location (TR 152-53).  Mitchell further testified under cross-examination that he would not want to work with a police officer who was a liar when that officer might be the only other witness to a police shooting (TR 154-55).

    The record persuades the Arbitrator that Grievant deliberated lied to Dispatch and to Lt. Stipes to cover up things he knew he was doing wrong and then failed to be honest about what he had done when he had the opportunity.  Grievant's short period of service and less than even a Very Good Performance Evaluation, let alone an Outstanding Evaluation,  do not mitigate a lessor penalty.  The record persuades the Arbitrator that the City had just cause to terminate the Grievant.

Award

    Based upon a careful consideration of the all the evidence and argument

on the issue, it is the decision of the Arbitrator that:

    1.   The City had just cause to terminate the Grievant.

    2.   The grievance is denied.   

                            William S. Rule
                            Impartial Arbitrator

January 8, 2001
Rancho Santa Fe, California
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