Title: County of Melrose, and Mike R. Connelly
Names and identifying references have been changed to preserve confidentiality.
hearing in this matter was held on October 29, 31 and November 7, 2001 before
Judy A. Gust, duly appointed Hearing Officer for the Civil Service Commission.
The appellant was represented by Richard M. Kreesin, from the Law
Offices of Kreesin and Cross. The
Sheriff's Department was represented by Cassidy S. Aaron, Deputy County
Counsel, County of Melrose.
parties were provided an opportunity to present evidence through exhibits and
the sworn testimony of witnesses who were subject to cross-examination.
The record of this hearing was closed on November 7, 2001 following
oral closing arguments by the representatives.
For the Respondent
Mike R. Connelly . . . . . . . . . . . . . . . . . Appellant
Jeffree Barton . .
. . . . . . . . . . . . . . . . . . Deputy
A. Blake Othello . . . . . . . . . . . . . . . . . . Sergeant
Gostart. . . . . . . . . . . . . . . . . . .
Mitchel Frontera .
. . . . . . . . . . . . . . . . . Special
. . . . . . . . . . . . . . . . . . . .
Sean Martin. . . .
. . . . . . . . . . . . . . . . . . Sergeant
. . . . . . . . . . . . . . . . . . . . .
Flaherty. . . . . . . . . . . . . . . . . .
Smith. . . . . . . . . . . . . . . . . . .
Beautrand. . . . . . . . . . . . . . . . . .
Franklin . . . . . . . . . . . . . . . .
Samuel. . . . . . . . . . . . . . . .
D. Woods . . . . . . . . . . . . . . . .
Earnest . . . . . . . . . . . . . . . . . .
Darnell . . . . . . . . . . . . .
. . . . Sergeant
Information and Statement of the Case
The Appellant, Mike R. Connelly, had been a Deputy with the County of Mlrose for approximately 24 ½ years prior to his termination on September 13, 2000. He also served as a reserve officer prior to his full-time appointment in 1976. At the time of his termination, Connelly was assigned to Narcotics.
incident prompting his termination occurred on April 19, 2000 following an
all-day narcotics surveillance action. Deputy
Jeff Barton and Connelly exchanged unprofessional comments over the radio
towards the end of the shift. At
the end of the shift, all of the deputies reported to a parking lot adjacent
to a McDonald's for a debriefing. While
waiting for the Sergeant, who was to conduct the briefing, to finish a
telephone call, several of the deputies were standing around talking near
Deputy Gostart's vehicle. Connelly
was one of the last to arrive. He
parked his car some distance away from the other cars and walked toward the
group. He approached Barton from
behind and tapped him on the shoulder or arm to get his attention and asked
Barton something to the effect of – do you have something to say to my face?
Barton moved his other arm and removed Connelly's hand from his arm as
he (Barton) was turning around. Barton
responded with something to the effect of – yeah, I have something to say.
As Barton was turning around to face Connelly, Connely's flat, open
hand made contact with Barton's cheek and chin.
The whole incident reportedly occurred in from two to five seconds.
this incident, Sergeant Brown, the team's supervisor, and Sergeant Martin,
assigned at that time to Internal Affairs, conducted an investigation of the
incident. Sergeant Brown was also
interviewed as part of the investigation as a witness to the team's
environment and as the party responsible for team morale.
Although Connelly suggested that David Flaherty be interviewed as a
witness to Barton's past conduct that Connelly contended was an aggravating
factor, Sergeant Martin determined that Flaherty's information was not
relevant to the investigation. Consequently,
Flaherty was not officially interviewed as part of the investigation.
The investigative report and Connelly's employment history were
presented to the Deputy Chief's Board which made the decision to terminate Mr.
of Disciplinary Action/Relevant Rules and Regulations
Following are the causes cited by the Sheriff of Melrose County supporting its decision to terminate Mr. Connelly:
On April 19, 2000, while on duty,
you demonstrated unacceptable
behavior as a deputy Sheriff when you struck Deputy Jeffree Barton.
Said conduct is in violation of County Personnel Rule X, Section 2(b),
2(l) and 2(q); and departmental Rules and Regulations 1/215 and
1/215.40; and is cause for discipline under said rules.
County Personnel Rule X
treatment of the public or other employees.
2(l) Neglect of
2(q) Any action
inconsistent with these Rules or officially promulgated
Departmental Rules and Regulations
1/215 MISCONDUCT –
SAFETY EMPLOYEES. A law
is the most conspicuous representative of government, and to the
majority of the people he is a symbol of stability and authority upon
whom they can rely. An
officer's conduct is closely scrutinized, and
when his actions are found to be excessive, unwarranted, or
unjustified, they are criticized far more severely than comparable
conduct of persons in other walks of life.
Since the conduct of an
officer, on or off duty, may reflect directly upon the Department, an
officer must, at all times, conduct himself in a manner which does
not bring discredit to himself, the Department, or the County.
1/215.40 RESPECT AMONG
MEMBERS. Members shall avoid
speech that is subversive to good order and discipline.
treat each other with the utmost courtesy and respect, and at all times
refrain from making any derogatory
remarks concerning each other.
They shall direct and coordinate their efforts to establish and
the highest level of efficiency, morale, and achievement.
conduct themselves in such a manner as to bring about the greatest
harmony among the various organic units in the Department.
Discourteous treatment of the public or other employees may be
cause for demotion, suspension, reduction in salary step, or dismissal.
The Respondent's position is that the preponderance of the evidence showed the accuracy and sufficiency of the facts that support the termination of the Appellant, Mike Connelly. It argues that Connelly engaged in a verbal altercation with Deputy Barton both on the radio and on the cell phone. As a result of these interactions, Connelly was angry and could not control his temper. That anger resulted in his intentional slapping of Barton when the group later met to debrief behind a McDonalds restaurant. The Respondent pointed to the testimony of other deputies at the scene: Frontera's testimony that the slap was a slap of confrontation, Othello's testimony that it was a "bitch slap" and Connelly's own response, when questioned by Gostart about why he "hit" Barton, that he didn't hit him but slapped him.
Respondent further argues that even if Barton made the comments alleged by Connelly, such verbal insults were no justification for physical violence. The radio comments made by Barton on the night of the incident occurred at approximately 10:00 p.m. and the cell phone exchange took place from 30-60 minutes later. The team did not meet until approximately 11:45 that night to debrief and, according to the Respondent, Connelly was still angry and initiated the physical contact with Barton.
Although the Respondent does not dispute Connelly's good record, it asserts that a good record does not negate such misconduct. Deputies find themselves in stressful situations daily and need to control their temper and remain calm. In this case, the Respondent asserts that Connelly was mad and that his temper led him to strike Barton without justification.
level of discipline was appropriate in this case because the fact that
Connelly struck Barton is undisputed, the discipline was consistent with other
employees who were recently terminated for violent conduct, Connelly has a
history of this type of behavior (having received a three-day suspension in
1993 for slapping a juvenile), and that such progressive discipline in the
past put Connelly on notice that he could be terminated for further behavior
of this sort.
Respondent relies on the testimony of Sergeant Martin and Captain Best to
rebut the Appellant's assertion that he was not given a fair investigation.
Martin testified that he assisted Brown in the investigation and
conducted an informal interview with Dave Flaherty, a witness who was
suggested by Connelly who could testify to Barton's past inappropriate
comments. Sgt. Martin concluded
that Flaherty's information was not relevant as he was not involved or at the
scene of the April 19, 2000 incident that prompted the investigation of
Connelly. As a result of Martin's
conclusion that the information was not relevant, Maartin did not formally
interview Flaherty as part of the investigation or include Flaherty's comments
in the investigative report. Captain
Best, the Commander of Personnel Services to which Internal Affairs reports,
testified that Sergeant Brown's role as the lead investigator on the Connelly
investigation of the of April 19, 2000 incident was appropriate and in
compliance with departmental policy. That
policy is to keep the investigation at the lowest level of supervision with an
Internal Affairs investigator assigned as a partner in the investigation.
Captain Best testified that this allows line Sergeants to gain
experience with internal investigations and comports with their
"mentor" program. Further, Best testified that because Brown was not present at
the incident, he did not find anything inappropriate about Brown being
interviewed by Martin as part of the investigation to ascertain the
relationship between Connelly and Barton.
In summary, the Respondent asks that the termination be upheld because the facts were true -- that Connelly lost his temper and slapped Barton; that Connelly has a history of this behavior and had sufficient notice that further discipline could occur for similar behavior; and that the action was consistent with the Department's policies and procedures.
Appellant's position is that the Department failed to prove a violation of any
Department regulation in that Connelly's striking of Barton was an
unintentional reaction to Barton's quick turn around and raising of his arm to
remove Connelly's arm from his shoulder.
Appellant points out that Connelly was the one most focused on the
issue and in the best position to observe what was happening in the two to
five second incident. The
Department's attempt to prove that Connelly's action was intentional was
rebutted by the testimony of several witnesses who, while testifying that they
could not get inside Connelly's head to know his intent, nevertheless
attributed intent to his action in their interpretation.
Connelly denied any intent to strike
Barton. Rather, Connelly's
testimony was that he intended to "talk it out" with Barton to clear
up a long-standing issue with Barton's inappropriate communications over the
radio. As the Appellant argued,
it is unlikely that a 27-year veteran would approach a co-worker in front of
multiple witnesses to intentionally engage in a physical altercation.
Connelly testified that he touched Barton on the shoulder to get his
attention as Barton's back was to him and asked Barton "do you have
something to say to my face".
Barton turned around quickly and raised his left arm and hand to brush
away Connelly's hand from his shoulder and yelled, "yeah, I have
something to say". Barton didn't deny turning around and brushing or
pushing Connelly's arm. At that
time, Connelly testified that he felt threatened and just reacted to protect
what might follow so he raised his arm and his open hand struck Barton on the
also testified that he had complained to Sergeant Brown about Barton's conduct
on the radio over a period of time but observed no improvement. Brown's role
as the lead investigator of the incident, while also being a precipient
witness, raises doubts about the fairness of the investigation.
Connelly also testified that others in the Department had voiced
concerns over Barton's comments over the radio.
Sergeant Martin's decision that Flaherty's information was not relevant
to the case raises further doubts about the fairness of the investigation.
Flaherty testified that he also had objections to Barton's inappropriate
comments, specifically Barton's comments at a debriefing in front of other
deputies about Flaherty's brother. Flaherty's information may have been exculpatory and without
being interviewed, his information never had an opportunity to reach the
decision-makers in this case. Although
in closing argument the Appellant stated that Brown's involvement in the
investigation was not the meat of the case, Appellant does point out that good
investigative procedure would preclude a precipient witness from being
responsible for the investigation. This would be even more important where
that investigator might be reluctant to challenge witnesses' recollections or
probe deeply into provocation for fear of an allegation that he failed to
properly supervise Barton.
also questions the credibility of the witnesses as they were neither focused
on the event before it occurred nor observed it directly until it was in
progress, a time span of some one to five seconds.
Further, these witnesses reported essentially the same version of the
incident with little variation. In
Appellant's investigative experience, several perspectives and interpretations
are likely when multiple witnesses report on an incident.
That experience suggests that the witnesses testified to what they
thought occurred based on discussions occurring after the incident.
the Appellant addresses the appropriateness of the discipline. Connelly
admitted that he used the word "ass" in reply to Barton's earlier
comment to Connelly to "get his head out of his ass" and admitted
that his comment was inappropriate. Connelly
also testified that about ten minutes after the radio exchange, he called
Barton on the phone and told him to be careful about what he said over the air
to which Barton replied, "fuck you".
However, Connelly rebuts the progressive discipline argument of the
Department by pointing out that the 1996 incident involved his grabbing of a
juvenile theft suspect that he thought might get away.
The 1996 incident resulted in a three-day suspension that Connelly did
not appeal. Additionally, the
facts of the two incidents were dissimilar as the 1996 incident did not
involve a fellow officer. Since
that time, Connelly has received four overall "exceeds standard"
performance evaluations. In the
words of the Appellant's representative, the penalty "shocks the
conscience" and "reaches too far" when considered in light of
the totality of the circumstances. Appellant
points out that the Department does not have a "zero tolerance"
policy on touching and cited the testimony of Captain Best about a few recent
cases where a difference of opinion and physical interaction occurred between
not only deputies but between management employees.
In those cases the participants were not terminated.
of the Evidence
As set forth in the County's Personnel Rules, specifically Rule X,
Section 14, the appointing authority has the burden of proving the accuracy
and sufficiency of the facts upon which the dismissal is based upon a
preponderance of the evidence.
In this case, the accuracy of the fact determination depends largely on credibility of both the principals (Barton and Connelly) as well as the witnesses. Barton testified that the strike by Connelly was intentional and not accidental. Connelly testified that he had no intent to strike but rather that he approached Barton prior to the debriefing to "talk it out" with him concerning the comments made that evening as well as prior comments made by Barton that Connelly believed were inappropriate. The contact with Barton was a normal protective and inadvertent reaction to Barton's physical actions of turning around quickly and raising his arm to push Connelly's hand from his shoulder. Ordinarily one must question the credibility of the person who stands to gain the most. That would be Connelly in this instance. However, Connelly's testimony is found to be the more credible based upon the contradictions and denials made by Barton as compared with Connelly's straightforward, unhesitating testimony that also admitted some culpability on his part as to the discourteous remark that included the word "ass".
contradiction noted concerned Barton's possession of a radio during the verbal
exchange that occurred at about 10:00 p.m.
Barton testified that he was briefing the team that was taking over the
surveillance. At that time
Othello called Barton to say that someone was trying to reach him.
Barton testified that he wasn't listening to the radio traffic while he
was talking on the phone to the relief team about what had been going on
during Melrose's surveillance. Because the complete relief team was not there yet, Barton's
team was to follow the two cars that were leaving the surveillance area.
Barton testified that he didn't have his Sheriff's radio so he called
Othello and asked him to broadcast that their team should follow the cars.
Barton then finished briefing the relief team and asked where his team
was at now. That was the first
interchange with Connelly when Connelly said, "if you'd listen to your
radio you would know". That
is when Barton testified that he responded, "pull your head out of your
butt and tell me where you're at". Barton
testified that another team member identified their location. Barton then testified that he then gave the radios to the
relief team and went to where his team was located.
If Barton did not have a radio, the question arises as to what radios
he gave to the relief team before joining his own team. While not a fatal contradiction to the issue at hand, it does
diminish one's confidence in Barton's entire account of the event.
also testified that he was leaning against the fender of Gostart's Bronco and
later testified that Connelly approached him from behind and that he had to
turn to see who had touched his arm. If
Barton was leaning against the fender, it is difficult to imagine how Connelly
approached him from behind without crawling over the hood of the car.
It is more probable that in the few seconds of the entire altercation
and Barton's surprise at Connelly's contact and inquiry, that memories have
either faded and/or were less than accurate to begin with.
testified that he called Barton shortly after the radio exchange to tell
Barton to watch what he said over the radio.
He further testified that Barton replied with "fuck you".
Barton did corroborate that Connelly initiated the call to him but
denied saying "fuck you" to Connelly.
Rather, Barton testified that he tried to explain why he didn't hear
the radio traffic and Connelly hung up on him.
Logic would suggest that Connelly initiated the call because he had
something to say to Barton and didn't make the call just to hear
Barton's side of the story and then hang up.
Connelly's testimony in this regard is found to be the more credible.
next credibility assessment that must be made concerns the credibility of the
witnesses who testified about Connelly's intent.
The witnesses presented by the Respondent
testified that they believed that Connelly intended to strike Barton
even though they were otherwise engaged in conversation when the less than
five second exchange began. In
contradiction to these attributions of intent, these witnesses also testified
that they could not really say "what was in Mike's head" or, in
other words, could not determine his intent.
Ordinarily one considers giving more weight to the testimony of
disinterested parties. If one
were to do that in this case, the intent attributed to Connelly by the various
witnesses might be more persuasive. However,
one must be sure that the witnesses are truly disinterested.
That may not be the case in this situation. The three deputies who testified for the Respondent --
Barton, Gostart and Othello -- have all been with the department approximately
12 years, presumably starting at about the same time and sharing their
introductory periods within the Department.
On the other hand, Connelly had more than twice as much service time as
these witnesses. Further,
Connelly was considered to have "boundless energy" and "no
difficulty keeping pace with his teammates".
(App. Ex. A-2) Connelly's
performance evaluations for 1996, 97, 98 and 2000, clearly reflect an
exemplary deputy who has a great deal of knowledge and experience to share
with other deputies. However,
Connelly also appears to have difficulty in delivering his suggestions and
constructive criticism to others in an effective manner.
It is more likely than not that these witnesses have been the
recipients of Connelly's suggestions and/or criticism in the past and harbored
resentment toward him.
of concern regarding the testimony of the Respondent's witnesses is the fact
that one precipient witness, Sergeant Brown, was in charge of the
Lieutenant Best testified that having the Sergeant of the employee being
investigated head the investigation was compliant with departmental policy, he
also testified that Brown's role in supervising Barton, given Connelly's prior
complaints to Barton, might have disqualified him if that was known at the
time. The only people that should
have known of Connelly's prior complaints were Connelly and Brown.
Further, Connelly testified that after complaining to Brown about
Barton's radio communications, Brown counseled Connelly about his radio
comments. Connelly also testified
that when Brown conducted these counselings, he did so without benefit of
hearing Barton's previous comments that Connelly was replying to.
That Brown did not recuse himself and have someone else at least take
the lead in the investigation raises questions about the objectivity and
thoroughness of the investigation especially in regard to whether the
witnesses that attributed intent to Connelly's behavior were accurate and/or
Connelly's behalf, other witnesses testified as to Connelly's professionalism,
his concern for officer safety and his continued assistance to the Department
even after his termination.
Connelly was concerned about what he perceived to be inappropriate comments by
Barton over a long period of time is not disputed.
Connelly testified that he was aware of other deputies' concerns about
comments made by Barton, specifically Deputy Franklin who objected to Barton's
comments in reference to Connelly's daughter, and Deputy Flaherty who objected
to Barton's comments about Deputy Flaherty's brother. However, Connelly's concern about Barton's comments is just
as likely to support Connelly's testimony that he wanted to "talk it
out" with Barton as it is to support the Respondent's position that
Connelly was mad and intentionally struck Barton. In light of the Respondent's burden to prove the accuracy of
the facts, the disparate testimony of witnesses and the questionable
investigative process, the testimony of both parties' witnesses is
inconclusive as to the intentions of
Connelly when he approached Barton in the parking lot.
The Respondent also argues that Connelly's comment to the Internal Affairs investigator following the incident evidences his intent to strike and harm Barton. Connelly admitted making the comment "like the bitch that he is" in reference to Barton. However, as argued by the Appellant, he was frustrated because he had seen no improvement subsequent to reporting his concerns about Barton to Sergeant Brown. Again, Connelly's discontent with Barton was well known and the statement Connelly made is not sufficient in and of itself for a finding that Connelly's physical contact with Barton was intentional.
As the Respondent so aptly points out, frustration and disagreement with the behavior of another deputy does not justify physical violence in the workplace. However, in view of some of the questionable testimony by Barton, and Connelly's testimony as to his intent – to talk out his concerns with Barton -- the evidence falls short of the preponderance necessary to show that Connelly intended a physical altercation with Barton. Given that the Respondent has the burden of proving its claim, that burden has not been met as to intentionality on Connelly's part. It is just as probable, if not more likely, that Connelly's open handed contact with Barton's face was an inadvertent reaction to Barton's physical movements in quickly turning around, yelling his reply and brushing/pushing Connelly's hand from his (Barton's) arm. Accordingly, the charge that Connelly was angry, lost his temper, was out of control and intentionally struck Barton cannot be sustained.
Respondent advances its progressive discipline argument to support the
appropriateness of the type of discipline imposed on Connelly.
What is also implied by the evidence of Connelly's prior discipline is
that Connelly has a history of violent behavior.
That implication as well as the severity of the discipline must be
testified about the circumstances that let to his 1996 three-day suspension
that he did not appeal. In that case, he was assisting a reserve officer who found
another robbery suspect in a vehicle after the vehicle had been called
grabbed the suspect when Connelly observed that the officer who placed the
suspect against the car then removed his hands from the suspect. That situation is clearly different from the present matter
and did not involve physical contact with another deputy. No implication can be drawn from this isolated and
dissimilar incident about any tendency towards violence on Connelly's part.
second issue, the severity of the discipline, must also be considered in this
case. As was pointed out,
deputies are put in stressful situations daily calling for good judgment and
composure. Connelly has had no
discipline since the 1996 incident, for physical contact or any other
infraction. In fact, Connelly has
received four performance evaluations since that time that reflect an overall
"exceeds standard" performance rating which also include high marks
for judgment and stability.
unable to sustain the Respondent's charge that Connelly intentionally struck
Barton, the one remaining issue that was charged against Connelly concerns the
verbal exchange made over the radio between Barton and Connelly.
Connelly admitted that he told Barton "if you'd get your head out
of your ass, you'd know" in response to a similar statement made by
Barton. Because the accuracy of
whether or not Barton used the word "ass" first is not at issue
here, the admission by Connelly of using that language over the radio sustains
a charge of discourteous treatment of a fellow officer.
However, again, the appropriateness of the penalty must reviewed.
rebuttal witness Lieutenant Best testified that there were two other cases
(1991 and 1993) where physical altercations resulted in termination, he also
testified about two recent cases where physical contact was made and the
principals were not terminated. It is clear from the record and this testimony that the
Department does not have a "zero-tolerance" policy and, as
Lieutenant Hart testified, each case is looked at separately, implying
discretion on the part of management.
Appellant's representative argued that the severity of this penalty, under the
totality of the circumstances, "shocks the conscience" and
"reaches too far". This hearing officer would agree. Connelly's recent performance evaluations are compelling as
to the overreaching of this discipline. Although
there is one area of concern relating to how effectively or not Connelly
shares his vast knowledge and experience with others, this deficiency is noted
only in the comments section on areas for development.
Nowhere in the performance factors themselves is he ever marked below
job standards or unsatisfactory. Rather,
his many "exceeds job standards" ratings far exceed even the
"meets standard" ratings and the comments on his exemplary
performance track accordingly. In
1996, 97, and 98, Connelly rated 7
or 8 out of a possible 9 on judgment and stability (as well as others) with
stability being defined as "Is emotionally well-balanced. Shows good
self-control and poise and can be relied upon to perform under pressure."
Consequently it appears that this April 19, 2000, incident was seized
upon as a way to get rid of a loyal and dedicated employee who has high
standards, productivity and performance and who also exhibits some impatience
when trying to get others to meet the high standards he sets for himself.
That accuracy and sufficiency of the facts simply do not support the
act of termination of employment.
Findings of Fact
As to the first charge, "discourteous treatment of the public or other employees", it is found that Deputy Connelly did treat Deputy Barton discourteously when he responded in kind to an offensive remark made by Deputy Barton over the radio.
the second charge, there was no evidence presented that Deputy Connelly
neglected his duties on April 19, 2000, or at any other time.
third and fourth causes cited by the Department are found duplicative of the
first charge; more specifically, Departmental Rules and Regulations 1/215
(Misconduct) and 1/215.40 (Respect Among Members).
As noted above, the preponderance of the evidence supports only a
finding of discourteous treatment of a co-worker in violation of Department
Rule 1/215.40. The evidence was
insufficient to find that Connelly intentionally struck Deputy James Barton on
April 19, 2000, or that his behavior under the circumstances was excessive,
unwarranted, or unjustified or that it brought discredit to the Department.
That he spoke disrespectfully to a fellow officer is the only charge
that can be sustained.
is the conclusion of this hearing officer that the termination of Deputy
Connelly was unwarranted and not supported by either the accuracy or
sufficiency of the evidence.
upon the above analysis, findings of fact and conclusion, it is recommended
that the Appellant be reinstated
to his former position with full back pay and benefits less the equivalent of
a five-day suspension for his discourteous treatment of a fellow officer.
Further, it is recommended that Appellant be required to complete an
applied (includes practice) oral communications class or seminar that focuses
on effectively delivering information and constructive criticism within six
months following reinstatement.
Judy A. Gust
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028