of Ohio, Department of Natural Resources and
Order of Police
OPINION AND AWARD
In the matter of Arbitration
of Police, Ohio Labor Council, Inc.
The State of
Ohio, Department of Natural Resources
An arbitration hearing was conducted on July 20, and continued on August
19, 2005 at the Ohio Office of Collective Bargaining, in Columbus, Ohio.
The parties stipulated the issue in this case to be:
“Was the Grievant removed for just cause?
If not, what shall the remedy be?”
a grievance dated November 18, 2003 the Grievant and FOP allege violation of
Articles 18.09, 10.03 and 19.05 of the Collective Bargaining Agreement.
18 – ADMINISTRATIVE INVESTIGATION
Off Duty Conduct
action will not be taken against any employee for acts while off duty except for
ARTICLE 19 –
No bargaining unit member shall be reduced in pay or
position, suspended or removed except for just cause.
19.05 Progressive Discipline
The Employer will follow the
principles of progressive discipline. Disciplinary action shall be commensurate
with the offense. Disciplinary action shall include:
1. Verbal Reprimand (with
appropriate notation in employee's file);
However, more severe discipline
may be imposed at any point if the infraction or violation merits the more
The Employer, at its discretion,
is also free to impose less severe discipline in situations which so warrant.
The deduction of fines from an
employee’s wages shall not require the employee’s authorization for the
withholding of fines from an employee’s wages.”
(H) Conduct Unbecoming an Officer
An employee may be charged with conduct unbecoming an officer in the
For conduct that may bring discredit on the Department of Public Safety,
its Divisions, or its members.
For committing any crime, offense, or violation of laws of the United
States, the State of Ohio, or any municipality.
Evidence and Recovered
An employee shall carefully protect and preserve for proper disposition
any article or property recovered or turned over to them after loss by its
rightful owner, held as evidence, seized from a prisoner, or otherwise entrusted
to their care.
Darin Plummer, at the time of the incident giving rise to this grievance,
was an Enforcement Agent for the Ohio Investigative Unit of the Ohio Department
of Public Safety.
Most of the facts in this matter are not in dispute.
Agent Plummer was working in the Columbus area and he and a partner
completed their shift around midnight. They
stopped by a friend’s house to visit. Agent
Plummer was dropped off at his office on West Broad Street near interstate 70 on
the Hilltop area of Columbus. He
got in his state issued car and returned to the friend’s house allegedly to
pick up his electronic swipe card and his daily planner.
He stopped by a Kroger Store on West Broad to get something to eat and
went to the home of the friend.
While there he had a cell phone conversation with another Enforcement
Agent for about an hour. He
testified he picked up his swipe card and his planner and proceeded down West
Broad Street heading east toward his office.
At approximately 4:37 a.m. his car made contact with something that
caused noticeable damage to the windshield on the passenger side of the state
owned car he was driving.
Agent Plummer proceeded toward his office without stopping.
In the vicinity of the office he stopped to examine the car. He found the
mirror on the passenger side of the car to be loose and decided to return to the
scene of the incident.
At about this same time he had a telephone conversation with Agent Farmer
who was at his home in Newark, Ohio.
Agent Plummer returned to the West Broad location where he found several
He identified himself and was informed that a pedestrian was struck at
that location and transported to Doctor’s West Hospital.
Agent Plummer was cited for the criminal charge of “Failure
to stop After an Accident.” He
was tried in Franklin County Common Pleas Court and was found “Not Guilty” by a Jury on April 13, 2005.
In separate action the Department informed Agent Plummer in a letter
dated November 5, 2003 that he was being charged for violation of “Work Rule
DPS 501.02 (U) Evidence & Recovered Property and Conduce Unbecoming DPS 501.02 (H) (1) (a) & (b).”
The specifics noted in this pre-disciplinary
letter state: “Specifically, you were involved in a hit skip injury crash
involving a pedestrian in a state vehicle while off duty on July 18, 2003, and
during the course of the subsequent investigation, unmarked and undocumented
drug paraphernalia was discovered in the trunk of your state vehicle.”
Captain Richard J. Keys conducted a pre-disciplinary meeting on November
12, 2003 and reported to the Department Director that same day that he found
that “just cause exists for
In a letter dated November 14 2003
Department of Public Safety Director Kenneth L. Morckel informed Agent Plummer
that he was being terminated. The
text of this letter stated:
“Dear Mr. Plummer:
You are hereby advised you are being terminated from your employment with
the Department of Public Safety-Investigative Unit effective close of business
November 14, 2003.
You are being terminated for violation of DPS 501.02 (U) Evidence &
Recovered Property and DPS 501.02 (H) (1) (a) & (b) Conduct Unbecoming an
Agent Plummer and the FOP filed a grievance
on November 18, 2003 asserting violations of Articles 18.09, 19.01, and 19.05 of
the Collective Bargaining Agreement.
The statement of the grievance reads: “discipline
without just cause and without regard to progressive discipline in the form of
termination on November 14, 2003.”
The remedy requested was “to be reinstated and made whole for all time lost.”
Management argues that the behavior of the Grievant reflected poorly on
the employer. The employer argues
that the Patrol investigated the scene and “advised that the evidence found
was conducive to an accident where the driver was inattentive and drifted off
the road surface.” 
Management also argues that when the grievant asked the law enforcement
officers on the scene to “help him out” that he was attempting to
inappropriately use his position as a law enforcement officer.
The Employer notes that when the car was impounded and searched that drug
paraphernalia was found in the trunk. Because
that paraphernalia was believed to contain drug residue, the grievant was in
violation of Departmental Policy and Procedure for handling such material.
They note it is uncontested that the grievant was using his state vehicle
for purposes that were non-work related.
They believe he lost control of his vehicle, hit a pedestrian and ran
from the scene.
In their brief the employer lists their arguments as follows:
Even though the Grievant was
acquitted at the criminal trial, his actions still warrant removal from his
The employer acknowledges the Grievant was acquitted of the criminal
charge but believes he brought discredit on the Department and that this is an
offense to merits termination in and of itself.
They support this view by referring to an arbitration decision by
The Employer argues that “Conduct Unbecoming an Officer” applies to a
broad range of conduct. They go on
to say “Misuse of his state vehicle was inclusive in this charge.”
The Grievant’s actions the
morning of July 18, 2003 were clearly inappropriate and brought discredit to the
The Employer argues that “the Grievant’s version of the events that
happened that early morning does not make sense.”
Jack Holland’s testimony has
no bearing on whether the Grievant’s behavior amounted to conduct unbecoming
Jack Holland is an accident re-constructionist employed by the FOP to
give his views of what happened on the morning of July 18, 2003.
The Employer notes that Mr. Holland examined the scene of the accident
several months after the incident occurred and that he was in the employ of the
Grievant’s representative. They
argue his testimony has no relevance in the arbitration.
Finding drug paraphernalia
containing a controlled substance in the trunk of Grievant’s state car is
The Employer notes that in the course of the investigation of this matter
drug paraphernalia was found in a cardboard box in the trunk of the car that had
not been labeled, logged or correctly disposed of.
The employer rejects the position of the Grievant when
he states he did not of a clear policy regarding how to handle such material.
In conclusion the Employer argues the actions taken by the grievant
constitute just cause to support his termination.
The FOP argues
the Employer has failed to prove just cause and request the Grievant be
reinstated with full back pay and made whole.
Charge of violation of the law should not be considered by the Arbitrator.
The FOP argues
that the Employer chose to charge the Grievant with a criminal offense
“hit-skip crash involving a pedestrian.”
This is a criminal offense and the determination by a Jury was that the
Grievant was found not guilty of the charge.
Thus, the first charge by the employer cannot stand.
The Grievant did not violate the Employer’s policy relating to
believes the Employer has attempted to bring in unrelated issues.
The FOP relates the view of the Grievant regarding what happened.
He acknowledges he was involved in an accident but he denies that he had
any knowledge that he had hit a pedestrian.
The FOP points
out that the Employer believes the Grievant should have stopped but attempts to
explain why he did not do so.
The FOP notes
that in spite of the large number of Law Enforcement personnel on the scene no
one conducted tests of took photos to investigate what really happened.
No measurements were taken. No
tire treads were analyzed and no pictures were taken until later. The FOP offered the testimony of Jack Holland an expert
accident re-constructionist in order to refute the opinions held by other law
enforcement officers at the scene regarding what happened.
explained that when the Grievant asked some of the officers on the scene to
“help him out” he was asking that they perform a full investigation and that
he was not asking for special consideration.
The Grievant did not violate rule no. DPS 501.02 (U) by maintaining
certain drug paraphernalia in the trunk of his vehicle.
To refute Management’s position that the Grievant knew the procedures
he was to follow regarding the possession and distribution of drug
paraphernalia, the FOP called other Agents who testified that they did not know
of any procedure or policy that would cover a situation such as the material
found in the trunk of the Grievant’s car.
One of the witnesses called was an assistant property officer.
The FOP believes the Employer added charges following the acquittal of
the Grievant in order to support his termination.
To buttress it’s claim that the termination of the Grievant should not
stand, the FOP cited a case in which the Arbitrator states: “there is no basis
to justify a discharge for misconduct [Arbitrator Kesselman (28 LA 434)] unless;
The behavior harms Company’s reputation or product;
Behavior renders employee unable to perform his duties or appear at work
in which case the discharge would be based on inefficiency or excessive
Behavior leads to refusal, reluctance or inability of other employees to
work with the grievant.
The FOP argues that in the instant case, none of these criteria are met.
This is a very
sad case. An unfortunate accident
happened. A citizen was struck and injured.
She and her fiancé (now her husband) will always remember that terrible
life of an employee was also altered because of the events of July 18, 2003.
the human tragedies involved, the task of a Labor Arbitrator is to examine the
situation and determine if Just Cause exists
to support the disciplinary action taken by the employer.
the legal action taken against the Grievant, the Employer investigated the
incident and issued charges pursuant to the collective bargaining agreement and
the relevant sections of the Ohio Revised Code. The original charge letter, the
report of the pre-disciplinary officer and the letter of termination issued by
the Department Director are all very specific regarding the administrative
charges levied against Mr. Plummer. There
are three. I will list them in the order in which they will be
Work Rule 501.02 (H) (1) (b)
“For committing and crime or violation of the laws of the United States, the
State of Ohio or any municipality.”
This FOP argues
that the fact the Grievant was charged with a violation of statute and found not
guilty by a jury of his peers should be the end of this matter.
The Arbitrator should not examine anything about the charge.
The action of the criminal courts should be dispositive.
argues that notwithstanding the verdict by the jury, the standard of proof is
much less in an arbitration proceeding than in a criminal case.
Arbitrators generally deal with a “preponderance of the evidence.”
Criminal courts deal with “beyond a reasonable doubt.”
A review of the
cases shows that many arbitrators do examine the proofs and evidence offered and
occasionally decide differently than the outcome of the criminal court.
Arbitrator Gail R. Smith notes in a Prince George’s County Case, “Strict
scrutiny of the allegations is in order, where, as here, the alleged misconduct
is of a kind recognized and treated as a crime, and punished by the criminal
law. But even under the
preponderance of the evidence standard, it is concluded that the Department
failed to sustain its burden as to Charge 1.” (120 LA 682).
Arbitrator Knaufman reached the same conclusion in a Lockheed case (75 LA 1081).
He did note the distinction between a case in which “Grievants were
never convicted but neither were they acquitted.”
many arbitrators believe they have a responsibility to examine the evidence
under the lens of the lesser “preponderance” standard, the very specificity
of the rule of the Ohio Department of Public Safety in this matter, requires
that the judgment of the jury be accepted.
The rule states:
“for committing any crime,
offense or violation of the United States, the State of Ohio or any
It is a well
accepted practice in Arbitration to determine just cause on the specific
charge(s) levied against employees
Joseph M Schneider (118 LA 1556) and Arbitrator Laurie G. Cain (101 LA 470).]
The Ohio Revised Code 2931.03 states: “The
Court of Common Pleas has original jurisdiction of all crimes and offenses
except in cases of minor offenses the exclusive jurisdiction of which is vested
in courts inferior to the court of common pleas.”
I agree with the FOP that the Employer
could have charged the Grievant with any specific rule violations that they
chose to. Once they elected to
charge the Grievant with the violation of a crime, the appropriate body to
determine his innocence or guilt related to that crime was a Common Pleas jury.
At the very least,
in order for this Arbitrator to reach a different conclusion regarding the
incident, would have required different evidence than that considered by the
Jury. The testimony of the Law
Enforcement Officers who were called was basically the same as considered by the
Common Pleas Jury. Their speculations regarding what happened were called into
question by the testimony of Jack Holland, an expert accident
The Department of Highway Safety has the expertise and ability to conduct
their own investigation in addition to that done by the Sheriff’s Department. They did not do so, but relied on the Criminal Investigation
done by the Sheriff.
I find the testimony of the Grievant regarding his comment to the law
enforcement officers to “help him out” to be a credible possibility of the
statement. Thus, I assign no weight to it.
Consequently I find the employer has failed to support a violation of
Department Work Rule 501.02 (H) (1) (b).
I have to believe the employer had reached the same conclusion when they
note in their brief on page 2: “even though the Grievant was acquitted at the
criminal trial, his actions still warrant removal from his position.”
Let us turn to consideration of the next alleged rule violation. (501.02
In the employer’s brief (page 11) this is equated to an extremely
serious offense when they state:”... the investigators were horrified
(emphasis added) to find drug paraphernalia containing a controlled
substance in a cardboard box in the trunk.”
Agent in charge, Cook testified that she had trained the grievant as well
as Agents Mullet and Farmer on the proper procedure for handling drug
paraphernalia when there is no liquor charge involved
While I have no doubt that some training or instruction did occur, this
arbitrator finds the testimony of Agents Mullet and Farmer to be credible that,
at the very least, confusion exists about what should be done with drug
paraphernalia not attached to a suspect.
I have no doubt some training has taken place but it should be done and
documented so that everyone is knowledgeable regarding the Department’s
In any case, the presence of the material in the Grievant’s trunk
certainly does not, in and of itself, justify termination.
It was abundantly clear from the testimony of various witnesses that the
designations “FNU” and “LNU”
were not clearly understood nor were the circumstances in which they should be
On page 13 of the Employer’s brief there is a troubling implication
when the employer says: “In reality, there is no evidence to prove that these
items were not for the Grievant’s personal use.”
There is also not one shred of evidence to suggest they were for the Grievant’s personal use.
It was acknowledged that in the routine duties of an enforcement agent,
contact would be made with drug paraphernalia.
This implication is misplaced and appears to be an attempt to paint a
picture of the Grievant in the mind of the Arbitrator not supported by the
The employer attempts to include a charge of “Misuse of a State
Vehicle.” (See page four—Employer’s brief).
“There was no need to charge the Grievant with an additional charge.
Misuse of his state vehicle was inclusive in this charge.
To do otherwise, the Employer would have been ‘stacking the charges.’
To support this view the Employer cites an ODOT case 
by Arbitrator Rivera. This
Arbitrator is aware of that case. This
case is different in that the Employer has a specific work rule (501.02
[Equipment] B. which states: “An employee shall not use state owned equipment
except for the performance of official business.”
If the Employer wished to charge the Grievant with a violation of that
specific work rule they could have done so.
Fairness and due process demands no less.
Such a charge allows the Grievant to prepare for and offer a defense to
We have then one remaining issue for consideration.
501.02 (H) (1) (a) “For conduct
that may bring discredit to the Department of Public Safety, it’s Divisions,
or its members.”
There is no question that the conduct of
the Grievant on the night of July 18, 2003 was less than that which is desired
by any Employer.
The Arbitrator can understand the speculations of the Employer regarding
what happened that night. To the
Employer it appears that something very bad occurred.
The Grievant was frightened; he could
have stopped, to see what happened. He
could have pulled into the well lit
gas station down the street, or the Shopping Center, or the Waffle House.
Instead he proceeded to his office.
His first call was to a co-worker rather than a Police Agency or
supervisor. The Employer, no doubt speculated that he was trying to
develop a strategy regarding what to do next.
He drove several miles before he stopped his car.
The Employer’s speculations are understandable and reasonable but an
employee cannot be terminated based on speculation.
It requires proof.
The Employer charged him with a work rule tied to the commission of a
crime. (Hit Skip). He was found not
guilty by a Jury of his peers.
Thus, the major charge against him simply cannot stand.
In the Employer’s Brief and at the hearing, the State’s advocate made
a creative attempt to argue a general violation of “conduct unbecoming.”
The specificity of the rules cited and the documents charging the
Grievant simply do not allow the Arbitrator to consider this, somewhat revised,
view of the case and charges.
While this Arbitrator finds that such an incident, and the
actions of the Grievant have brought a measure of discredit on the Department, I
agree with the logic of Arbitrator Kesselman (28 LA 434) and the criteria cited
in that case by the FOP in their brief. “A
discharge cannot be justified for misconduct unless:
(1) The behavior
harms Company’s reputation or product;
renders employee unable to perform his duties or appear at work in which case
the discharge would be based on inefficiency or excessive absenteeism;
(3) Behavior leads
to refusal, reluctance or inability of other employees to work with the
There is no evidence that the Grievant is unable to perform his duties
and testimony of various witnesses demonstrated that other employees are more
than willing to work with him.”
As noted, I do not find sufficient evidence to support the termination
but do find a violation of Work Rule 501.02 (H) (1) (a).
The Employer cites an 1199 arbitration decision by
I concur with that conclusion. However,
I find the proven “misconduct” in this case is not appropriate to support
So what is the appropriate penalty?
A suspension of thirty (30) days would appear to be of sufficient impact
to impress the gravity of the situation.
is granted in part and denied in part. The
termination is modified to a thirty (30) day suspension. Grievant is to be
re-instated and awarded back pay from the period beyond the thirty (30) day
suspension, minus interim earnings and any normal deductions.
Grievant’s record shall reflect a thirty (30) day suspension for violation of
Department Work Rule 501.02 (H) (1) (a). No
violation will be noted for Work Rule 501.02 (U) but the Employer may train (and
document such training) regarding their expectations for handling drug
paraphernalia not connected to a suspect.
will retain jurisdiction to decide any disputes that might arise regarding the
implementation of this award for a period of sixty (60) days.
London, Ohio this 17th day of October, 2005.
A copy of this decision was delivered by electronic mail to:
Alicyn Carrel, Office
of Collective Bargaining
Department of Public Safety
Paul Cox, Fraternal
Order of Police, Ohio Labor Council, Inc.
day of October, 2005 with an original copy of the signature page, by regular US
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028