2003 NAC 122 Champaign County and Fraternal Order of Police

Title: Champaign County and Fraternal Order of Police
Date: December 31, 2003
Arbitrator: N. Eugene Brundige
Citation: 2003 NAC 122

An arbitration hearing was conducted October 22, 2003 at Urbana, Ohio. The issue at hand concerned the termination of Chance Carroll a Deputy Sheriff with the Champaign County Sheriff’s Department. The Employer was represented by Marc A. Fishel, attorney. The advocate for Mr. Carroll was Douglas Behringer, Staff Attorney for The Fraternal Order of Police, Ohio Labor Council Inc. (FOP/OLC).

At the hearing the parties jointly submitted two documents regarding the situation giving rise to this grievance, including the Collective Bargaining Agreement in effect and the grievance trail. In addition to verbal testimony, management submitted numerous documents and the union submitted parts of the Internal Investigation Report. Both parties submitted post hearing briefs within the times limits they had agreed upon. All testimony, arguments and materials were reviewed and considered by the arbitrator in reaching this decision.

Both parties were given full opportunity to examine and cross examine witnesses, pose arguments and present their respective cases. Both sides did so professionally and competently.

(At the conclusion of the hearing the grievant was given an opportunity to add anything he wished the arbitrator to consider. He stated he had nothing to add and indicated that he believed the FOP had represented him well and that he had received a fair hearing.)

The issue presented to the arbitrator for resolution was jointly agreed to. It was stated as: “Was the termination of the grievant for just cause? If not, what shall the remedy be?”

In that this grievance deals with a disciplinary matter, management assumed the burden of proof and presented its case first.

Section 8.1. The tenure of every bargaining unit employee of the Champaign County Sheriffs Office shall be during good behavior and efficient service. No employee shall be reduced in pay, suspended, discharged, removed, or otherwise disciplined except for just cause. The Employer may discipline an employee for violations occurring while the employee is on duty, working under the colors of the Employer, or off-duty with the violation having a relationship to employment with the Sheriff's Officee (sp.) Sheriffs Department. Forms of disciplinary action may include:

Section 8.2. Discipline shall take into account the nature of the violation, the employee's records of discipline, and the employee's record of performance and conduct.

Rule 1: Employees shall not commit any acts that constitute a violation of any of the rules, regulations, directives, or order of the Champaign County Sheriff’s Office or the Sheriff.

Rule 6.2 Unsatisfactory Performance (Failure to Conform to Work Standards Established for your Rank, Grade, or Position.)

Deputy Chance Carroll was employed by the Champaign County Sheriff on October 13, 2001. He had previously served for two years as an auxiliary officer with West Liberty. Previously he had served as a law enforcement officer in the Air Force.

On April 9, 2003 Deputy Carroll was terminated for actions surrounding an incident in which he had gotten his cruiser stuck in the snow for approximately three hours. During that time he failed to inform the Dispatcher that he was stuck during the hourly radio checks. He also indicated a different location during the two a. m. and three a.m. checks, implying that he was in service and on the move.

On the weekend of February 15, when this incident occurred, West Central Ohio was hit by a snowstorm which left approximately fourteen inches of snow on the ground. Deputy Carroll left his home in the midst of the February 15 snowstorm and discovered he needed to return home to get some money. He slid off a nearby road and was unable to get his vehicle out of the ditch. He called an Officer of the New Paris police department who came to the scene to assist. He used his cell phone to make the call rather than his radio. Mr. Carroll, the officer responding and another officer were unable to get the vehicle back on the road. Two citizens stopped to help. They also were unsuccessful and went to get a truck. There was a problem with the truck and it had to be repaired before they were able to get the cruiser out of the ditch.

The Sheriff’s Department employs hourly radio checks with each deputy in order to determine where they are located, if the officer is safe and available to take calls.

At the 1 a.m. call Deputy Carroll reported his correct location but failed to inform the dispatcher that he was stuck.

At the 2 a.m. call he reported a different location and again failed to inform the dispatcher he was stuck.

At 3 a.m. Deputy Carroll reported a location in the North West section of the County.

Deputy Carroll arrived at the Sheriff’s office by 4 a.m. While talking to other deputies who were relating stories of being stuck in the snow, Deputy Carroll announced to his fellow officers that he had been stuck for approximately three hours.

Upon being informed of this fact, Sergeant Olejniczak, Deputy Carroll’s supervisor, reported this information to his chain of command.

An investigation was initiated by the Administration. Deputy Carroll first stated that he was stuck for about an hour. When confronted with the statements of other officers, he admitted he had been stuck for approximately three hours. Deputy Carroll admitted that he had given false information during the hourly radio checks.

The employer notes that the grievant was not terminated for being stuck. The Sheriff terminated Deputy Carroll for lying.

The Sheriff notes that Deputy Carroll had been stuck on two previous occasions prior to February 15.

The first came when Deputy Carroll radioed his Sergeant to inquire where he was located. The Grievant admitted that he could have informed Sergeant Olejniczak at that time that he was stuck. He chose not to do so.

The next act of deception, in the opinion of the Sheriff, relates to the fact Deputy Carroll contacted the New Paris Police Officer. He used his cell phone rather than his radio. The employer notes that the radio conversation could have been heard by all deputies where the Nextel was private and unrecorded.

Next the employer notes that at 1 a.m., in response to the radio check, he merely gave is location as “11S”. He failed to report that he was stuck and not available for calls. The employer also notes that the grievant had already been stuck for over an hour.

Again, at 2 a.m. the grievant could have reported that he was stuck, but instead he not only failed to make that report, he lied about his location noting that he was at “11C.”

The employer believes that he again lied at the 3 a.m. radio check. The grievant claims that he was no longer stuck and was patrolling in the northern part of Johnson Township. Another witness, Officer Aycock, reported that the grievant was still stuck at 3 a.m.

The grievant also says he called Dispatcher Hopkins to inform her that, due to road conditions, he would be patrolling in the St. Paris area. All phone calls to dispatchers are recorded and there is no record of such a call.

The position of the Sheriff is simple. He believes he simply cannot keep a deputy who lies. The employer argues that if a deputy would lie about minor matters, then they cannot be trusted to tell the truth in Court or in other situations.

To buttress the position of the employer, they referred to a case by Arbitrator Harry Graham in the Clark County Sheriff’s Department[1] and to a case decided by Arbitrator Patricia Bittel in Paulding County. [2] In both cases the termination of a Deputy Sheriff was upheld, not based upon the incidents involved, but upon the fact the Deputy involved, lied.

The FOP admits that Deputy Carroll was untruthful during the date in question. They argue that the penalty is much too severe for the offense.

The FOP notes that Deputy Carroll “freely admits that he violated Rule 6.2 by failing to advise Dispatch that he was unavailable to respond to calls and that he failed to notify his supervisor of the situation.” [3]

Deputy Carroll would explain his actions by noting that he was stuck twice in the preceding week and he feared the reaction he would receive if he reported another incident. He testified that he was embarrassed and did not want others to hear about his situation over the radio.

The FOP also argues that the grievant gave the proper location at the 1 a.m. time check and that his testimony regarding his whereabouts at 3 a.m. should be taken at face value. They argue that the 2 a.m. report was merely an error.

The FOP argues that for severe discipline to be merited, the grievant must have forewarning and foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct. To support this position the FOP cites In re Pinto Valley Copper Corporation and United Steelworkers of America, Local 586. 83 LA 555 (1964).

The FOP concludes “It would be unreasonable to expect the Grievant in this case to expect termination as the result of his actions…,”

The FOP also argues on the grievant’s behalf that he was not given the opportunity to correct his alleged misconduct. The FOP notes that it is a basic principle of labor relations that an employee be informed of any deficiencies in order to correct them. In support they cite In re County of Meeker and American Federation of State, County and Municipal Employees, Minnesota Council 65. 87 LA 51 at 56 (1986) and In re American National Can Co., Foster Forges Glass Container Division and Glass, Pottery, Plastics & Allied Workers International Union, AFL-CIO, CLC, Local 30. 95 LA 873 (1990).

Also FOP submitted In re Sena-Kean Manor, County of McKean (Pa) and American Federation of State, County and Municipal Employees, District Council 85. 104 LA 369 (1995) and numerous other cases in which arbitrators modified termination decisions to lesser penalties.

Finally the FOP urges the Arbitrator to consider mitigating factors such as employment history and lack of prior discipline. The FOP notes the Grievant has eight years law enforcement experience and an “almost” spotless discipline record.

The positions of the parties are abundantly clear in this matter. The Sheriff believes that a deputy who would lie in such a situation, cannot be trusted to be honest in the performance of his duties.

The Grievant admits that he was less than truthful in reporting his circumstances and his location. While there is disagreement of specifics, Mr. Carroll acknowledges that he was not forthcoming with information and he justifies his actions because he was embarrassed and because he feared the consequences of truthful reporting.

There is no question that “just cause” exists to support discipline of some type. The only question is the appropriateness of termination.

On first impression, it seems harsh to terminate someone who made a series of bad judgments on one occasion. The FOP makes strong arguments in defense of Mr. Carroll.

This Arbitrator has carefully examined the cases and arguments submitted by FOP in support of its position.

In “Pinto Valley” the issue was insubordination. Mr. Carroll was not charged with insubordination. The FOP argues that the employer must give “clear and explicit” orders to an employee in order for that employee to understand the consequences of his or her actions. In cases where a direct order is in contention, that is a valid requirement, but there have always been responsibilities and requirements that are inherently a part of any job that do not require further statement, clarification or direction. A sworn police officer should not have to be told “If you lie you will be disciplined.”

The FOP valiantly puts forth the argument that Mr. Carroll did not intentionally give a false location. Arbitrators are the persons selected to judge the credibility of the testimony of all witnesses. This arbitrator simply does not accept that contention. The evidence does not support it. Mr. Carroll was in a ditch hardly a stones throw from his home. He knew exactly what township he was in and what part of that township. More importantly, he knew his disabled cruiser did not move between the one a.m. radio check and the two a.m. check.

Again this arbitrator is not persuaded that Deputy Carroll had freed his cruiser by 3 a.m., and then turned away from the Sheriff’s Office to move northwest of his location and arrive at his reported location for the 3 a.m. radio check. Officer Aycock testified that the Grievant was still stuck at 3 a.m. I find his testimony to be more believable. In addition it appears to be physically impossible to have traveled the distance in question with in excess of fourteen inches of snow on the roads, even if one accepts the grievant’s accounting of the time available.

The FOP relied on the “Meeker” case to support its contention that a lesser penalty is justified. The Meeker case concerned unauthorized long distance phone calls, and use of company envelopes and stationary. I do not find it to be adequately on point to be persuasive in this case.

Likewise, the Sena-Keen case was based on an investigation so flawed with time delays and a failure to identify all victims that it differs greatly from the case at hand.

The other cases submitted were reviewed and helpful to the arbitrator in considering all aspects of this case.

This is an unfortunate case. The FOP brief (at page 4) summarizes this matter when it states: “This was a situation that got out of hand.”

It does not appear to this arbitrator that the administration of the Sheriff’s Office had any particular negative agenda in this case. Lt. Emmons first recommended a ten day suspension. The Sheriff, in his testimony, expressed sincere concern about his action to terminate the employment of Deputy Carroll. This Arbitrator believes that if Mr. Carroll had been totally forthcoming early in this investigation and acknowledged the seriousness of his actions, such a plea would have received a fair hearing from the Sheriff. The record does not indicate that this ever happened.

There does appear to be a serious and justified concern about whether or not Deputy Carroll has so violated the trust of his office, both in the events of the night of the event, and in the subsequent investigation, to be able to be an effective Deputy in the future.

Most arbitrators, this one included, hold law enforcement officers to a higher standard of conduct and honestly than the general public. Arbitrator J. Scott Tharp, in a D.C. Transit Authority Case noted this belief when he stated: “Clearly, because of his role in society, a police officer must stand on a higher plain than many ordinary citizens. His moral behavior and reputation for truth and veracity should be above reproach.” [4]

Deputy Carroll was a sworn, commissioned Peace Officer. Because of fear of embarrassment or consequence, he chose to lie repeatedly. While the content of the lies do not appear great, the motivation for being less than truthful is much more important. Peer pressure and fear of accepting responsibility appear to be the motivating factors at play. The Sheriff is justified in his concern about how Deputy Carroll would respond in a much more serious situation.

This Arbitrator notes that Mr. Carroll shared his situation with other officers only after some of them had told that they, too, had been stuck in the snowstorm.

Even after Mr. Carroll was confronted, the truth appears to come in small increments or not at all. The length of time the cruiser was stuck was amended after confronted by his questioners with statements from other officers.

The assertion by the grievant that a cell phone call was placed to the Dispatcher is simply not supported by the evidence. The records do not show that it ever took place.

Arbitrator James Duff in a Hamilton County Sheriff’s case made this observation: “The Grievant’s employment was police work. An officer’s indulgence in falsehoods to evade any issue naturally entails a consequent loss of credibility that undermines the willingness of fellow Officers to rely on him.” [5]

The final plea of the FOP, on behalf of the grievant, is that mitigating circumstances should be considered. That is always an appropriate request in a case as serious as a termination.

The FOP states: (at page 13 of the FOP Brief) “In the present case, given the grievant’s eight year history of law enforcement work with virtually no discipline, the discipline on its face appears to be punitive rather than corrective.”

Even though the grievant may have worked in law enforcement in the Air force and as an auxiliary officer in another jurisdiction, the Sheriff is only obligated to consider, and this arbitrator is only obligated to review, his record with the Champaign County Sheriff’s Office. He was employed October 13, 2001 and terminated April 9, 2003. His tenure, for consideration of mitigation is just under eighteen months.

The other factor often considered by arbitrators is whether the grievant understands the impact of their offense and whether they would be likely to repeat a similar offense if a lesser penalty were imposed.

Arbitrator Rhonda Rivera faced a similar situation in a State of Ohio case. She concluded: “Lastly, nothing the Grievant said indicated that she truly appreciated what she had done not that anything would correct her behavior.” [6]

I must draw the same conclusion based upon the Grievant’s testimony. The Grievant’s Advocate asked him if he had learned from this experience and “what would the lesson be?”

One would expect a statement acknowledging that it would be better to just tell the truth. Instead the grievant responded: “I wouldn’t have had to deal with all of this.” The Advocate tried to help clarify by asking, “Would you ever do it again?” The grievant responded: “Not after going through all of this.”

The arbitrator must conclude that the lesson learned was not about the need for Officers to be honest, but rather about not getting caught.

This arbitrator is a strong advocate of utilizing Progressive Discipline to correct behavior whenever possible, but in the instant case I agree with arbitrator Harry Graham when he said:

“It is unnecessary to delve into the question of whether or not the Employer followed the principles of progressive discipline in this instance. The offense committed by this Grievant was serious. It struck at the heart of the responsibility of a law enforcement officer.

Arbitrator Graham explains why he holds that dishonesty is a very serious offense: “It is unnecessary to belabor the fact that untruthfulness on the part of a law enforcement officer must be regarded as a very serious offense. It breaches the bond of trust that must exist between law enforcement agencies and the community. Providing false testimony to the Department calls into question the reliability of testimony that an officer might provide in a Court of Law. The Department cannot be placed in the position of having testimony impeached due to untruth in an internal investigation.” [7]

Based upon the reasons stated herein, this Arbitrator can find no justification to interfere with the Sheriff’s legitimate exercise of discretion. I find no violation of the Collective Bargaining Agreement in that Just Cause does exist to support this termination.

[1] FOP/OLC v. Clark County Sheriff (unreported)

[2] Paulding County Sheriff’s Department and Fraternal Order of Police 105 LA 1100

[3] FOP Brief at page 4.

[4] In re Washington Metropolitan Area Transit Authority (Washington D.C.) and Teamsters’ State County and Municipal Employees, Law Enforcement Division, Local 246. 84 LA 292 (1985).

[5] In re Hamilton County (Ohio) Sheriff’s Department and truck drivers, chauffeurs & Helpers, Local 100 99 LA 6 (1992).

[6] In re State of Ohio, Department of Rehabilitation and Correction, Bureau of Adult Detention and OCSEA, AFSCME, Local 11. 104 LA 579 (1995)

[7] FOP/OLC V. Clark County Sheriff, (unreported)

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.

APPEARANCES:
FOR THE EMPLOYER:	FOR THE UNION:
Marc A. Fishel, Attorney, Advocate Brent Emmons, Lieutenant Rich Olejniczak, Sergeant Larry D. Dagger, Witness Jason Byers, Witness Nathan Aycock, Witness David L. Deskins, Witness	Douglas Behringer, Attorney, Advocate Chance Carroll, Grievant