28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: City of Monterey and Deputy Joseph Campbell
Date: December 15, 2006
Arbitrator: David Gaba
Citation: 2006 NAC 113

Federal Mediation & Conciliation Service

 
In the Matter of an Arbitration

            Between

COUNTY OF MONTEREY, Employer

            And

DEPUTY JOSEPH CAMPBELL (Operating Engineers Local Number 3)

)
)
)
)
)
)
)
)
)
)

 

 

ARBITRATOR’S

OPINION AND AWARD

 

INTRODUCTION

            This arbitration arises pursuant to a collective bargaining agreement (hereinafter the Agreement) between the Operating Engineers  Local Number 3 (hereinafter the Union), and COUNTY OF MONTEREY (hereinafter the County), under which DAVID GABA was selected to serve as Arbitrator and under which his Award shall be final and binding among the parties.

            A hearing was held before Arbitrator Gaba on September 11, 2006 at Salinas, California.  The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute.  A transcript of the proceedings was provided.  The County filed a post-hearing brief on November 14, 2006 and the Union filed its brief on November 17, 2006.

APPEARANCES:

On behalf of the Union:

Nechelle L. Snapp, Esq.
Mastagni, Holstedt & Amick
Miller Johnsen & Uhrhammer
1912 “I” Street
Sacramento, CA 95814

On behalf of the County:

Ellen M. Jahn, Esq.
Deputy County Counsel
County of Monterey
168 W. Alisal Street, Third Floor
Salinas, CA 93901-2680

ISSUE

The parties stipulated to the following issue for grievance:  Whether or not there was just cause to dismiss Deputy Joseph Campbell, and if not, what should be the remedy?

RELEVANT CONTRACT PROVISIONS

The following policies are authoritative and relevant to this arbitration proceeding:

Sheriff’s Office Manual

206 STANDARDS OF CONDUCT

206.01  Rules of conduct govern each member of the Office.  Professional, as well as private conduct reflects upon the Office and all its members.

206.02  Office members shall speak the truth at all times whether under oath or not.

206.03  Office members, during the course of any official investigation, shall be required to give a full, complete and truthful statement if requested.

206.04  Office members shall so conduct their private and professional lives as to avoid bringing discredit to the Office.

 

206.33 Fraternization

A.  Employees shall refrain from establishing, or attempting to establish, any personal or business relationship with an in-custody prisoner during the period of such person’s incarceration.

C.  Employees shall refrain from establishing, attempting to establish, and/or maintaining a personal or business relationship with any person against whom criminal charges are pending in a court of law in this or in any other jurisdiction.

D.  Employees shall not fraternize with convicted former inmates of any county jail, state or federal prison, with persons of known felony criminal record, persons who are known users of drugs or narcotics, or persons with known organized crime connections.  Limited exceptions may be granted by the Sheriff upon written request.

 

Monterey County Sheriff’s Office General Order(s)

 

69.  Use of Department Computers and Software Applications

III.  Policies:

            H.  Employees of this Department may have access to CLETS and NCIC in the performance of their official duties.  The use of CLETS is governed by the California Department of Justice Policies, Practices and Procedures Manual.  All employees of this Department shall comply with established policy regarding the use of CLETS and NICIC.

            4. CJIS, CLETS, NCIC and DMV are available for the purpose of code enforcement or investigation of a crime or suspected crime.  They are not intended for information gathering for personal purposes.

            6. Employees shall not run themselves, friends, associates, or other persons for personal reasons, or for training purposes.

(Emphasis added)

 

MOU between Deputy Sheriff’s Association of Monterey County, General Safety, and Safety Supervisory Units, Units A & B

 

12 DISCIPLINARY ACTIONS

 

12.1 Disciplinary Action

The Sheriff may take disciplinary action against any employee in the Department who is subject to this MOU, provided that the rules and regulations prescribed herein are followed.  As used in this section, disciplinary or adverse action shall mean dismissal, suspension, disciplinary demotion, reduction in salary, or formal written reprimand.

 

12.2 Notice of Disciplinary Action

In order to institute disciplinary action, the Sheriff, or his/her designee, shall serve written notice of the proposed disciplinary action in accordance with the following procedures:

 

Except when emergency or other special circumstances require immediate action, a notice of proposed disciplinary action (other than for formal reprimand) shall be delivered to the employee, either personally or by United States Postal Service, to the current address listed on the employee’s most recent Personnel Action form, no less than five (5) calendar days prior to the effective date of any disciplinary action against the employee.  The five (5) day prior notice requirement shall not apply to the following disciplinary actions, but may be given within a reasonable time after the commencement of such discipline.

A. Suspension without pay of five (5) days or less;

B.  Suspension with pay of twenty (20) days or less;

C. Written reprimands;

D. Emergency or other special situations.

 

The notice(s) of disciplinary action shall together include the following:

A. The nature of the disciplinary action;

B. The effective date of the action;

C. The causes for the action in ordinary, concise language with the dates and places thereof, when known;

D. A statement that the material upon which the action is based is available for inspection; and

E. A statement advising the employee of his/her right to respond, either verbally or in writing, to the appointing authority or his/her designee imposing the disciplinary action prior to the effective date, and the right to be represented in that response.

In order to implement the proposed disciplinary action or a lesser disciplinary action based on the same cause(s), a notice of disciplinary action shall be delivered to the employee on or as soon after the effective date of the disciplinary action as possible.  This notice of disciplinary action shall contain the Information specified in items A, B, and C above and, in addition, shall include a statement of the employee’s right of appeal, if any, and representation by a party of his/her choice.  The notice also shall include a referral to the section of this MOU titled, “Appeals from Disciplinary Action”.

 

12.6 Suspension with Pay

Notwithstanding other provisions of this section, an employee may be suspended with pay and benefits for a period not to exceed twenty (20) working days in a determination by the Administrative Officer that circumstances exist that make the immediate removal of the employee to be in the best interests of the County and that the employee cannot be effectively used in his/her job classification within the department.

 

12.7 Suspension Pending Investigation for Disciplinary Action

The Sheriff may suspend an employee under his/her control from his/her position at any time for reasons of investigation for disciplinary action.  Such suspension will be with pay.

Written notice of such suspension shall be given the suspended employee as soon as possible, but not later than seventy-two (72) hours after such action is taken.  Such suspension is not a disciplinary action and shall not be subject to appeal unless it, or any portion of it, subsequently becomes a disciplinary action.  The Sheriff may reinstate any such suspended employee to his/her position for a good cause and providing the Sheriff is satisfied that no disciplinary action is appropriate.

 

12.10 Dismissal

The continued tenure of each employee shall be subject to his/her satisfactory conduct and the rendering of efficient service.  Should the cause of disciplinary action so warrant, an employee may be dismissed for either reason.

 

12.13 Appeals from Disciplinary Action

 

A.  The disciplinary actions of written reprimand and suspension without pay for a period of three (3) days or less shall not be subject to any disciplinary appeal except as provided in “B” and “C” below.

 

D. Employees (other than probationary employees) occupying a permanent position may file a written appeal from disciplinary actions other than those set forth in “A” above.  Said appeal must be filed in writing within a period of ten (10) calendar days after notification of the decision to take disciplinary action.

 

E. Said written appeal shall be field with the Clerk to the Board of Supervisors and state the basis of the appeal and shall contain a specific admission or denial of each of the material allegations contained in the notice of disciplinary action.

 

F. Within thirty (30) days after the filing of the appeal with the said Clerk or as soon thereafter as is practicable, the Board of Supervisors shall appoint a hearing officer.  The hearing officer shall commence a hearing on the appeal as soon as possible.  The appellant and the appointing authority may appear personally and may be represented by counsel at the hearing.

 

G. Except as mutually agreed upon by the parties to the proceeding, the failure by appellant to commence the hearing within ninety (90) calendar days after appointment of the hearing officer by the Board of Supervisors shall constitute an irrevocable waiver by the employee of his/her disciplinary appeal rights, and the discipline imposed shall become final and binding.

 

H.  Before the hearing has commenced and during the course of the hearing, the hearing officer shall 

issue subpoenas duces tecum at the request of either party.  Oral evidence shall be taken only on oath or affirmation.  The appellant and the appointing authority shall each have the right to call and examine witnesses, to cross-examine opposing witnesses on any matter relevant to the issues, impeach any witness and to rebut the evidence against him/her.  Technical rules relating to evidence and witnesses do not have to apply to such hearings.  Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.  At the hearing, the burden of proof shall be upon the appellant

 

I. At the conclusion of the hearing, the hearing officer shall prepare a summary record of the proceedings and prepare recommend (sic) findings, conclusions and decision.  The hearing officer shall submit a copy of said record of findings, conclusions and decision to the Board of Supervisors.

 

J.  Within thirty (30) days after the filing of the record and recommended findings, conclusions and decision of the hearing officer with the Board, the Board shall adopt such recommended findings, conclusions and decision, or shall reject the recommendations of the hearing officer and adopt its own findings, conclusions and decision after a review of the record.  The Board shall affirm, modify or reverse the order of the appointing authority causing the disciplinary action.

 

K.  The decision of the Board shall be final.  In the event that the Board shall modify or reverse the order of the appointing authority imposing disciplinary action, the Board shall, at the request of an appointing authority who is required to file an individual official bond, require the employee to file and individual bond, said bond to be executed by said employee as principal, in an amount equal to the official bond filed by the appointing authority, said bond to inure the benefit of the appointing authority.  The premium cost of said bond shall be charged against the County.

 

L. Each party shall bear its own costs; except that the expense of the hearing officer, the cost of a certified court reporter and the expense of a transcript of the hearing for the hearing officer shall be shared equally by the parties involved in the action being appealed.

 

Letter of Understanding, Addendum to MOU “Disciplinary Actions” and “Appeals from Disciplinary Actions”

 

12 DISCIPLINARY ACTIONS

12.1 Disciplinary Action

The appointing authority may take disciplinary action against any employee in a Department who is subject to this MOU and California Government Code 3300 et al, provided that the rules and regulations prescribed herein are followed.  As used in this section, disciplinary or punitive action shall mean dismissal, suspension without pay, disciplinary demotion, reduction in salary, transfer for purposes of punishment, or written reprimand.

 

12.2 Suspension with Pay Pending Investigation

Notwithstanding any other provision of Section 12, the appointing authority may suspend an employee from his/her position at any time for reasons of investigation for disciplinary action upon the determination of the appointing authority that circumstances exist that make the immediate removal of the employee from the workplace to be in the best interests of the County, and that the employee cannot be effectively used in his/her job classification within the Department.  Such suspension pending investigation shall be with pay and benefits, except when criminal charges or an indictment are pending against the employee.  Suspension with pay shall not be deemed disciplinary action and shall not be subject to appeal.

 

Written notice of such suspension shall be given the suspended employee as soon as possible, but not later than seventy-two (72) hours after such action is taken.  The appointing authority may reinstate any such employee to his/her position for a good cause, providing the appointing authority is satisfied that no disciplinary action is appropriate.

FACTS

Deputy Joseph Campbell was a sworn peace officer working in the Monterey County Jail in Salinas, CA.  Since his hire in 1997, his duties put him in close contact with male and female inmates as well as other deputies, nurses, and facility staff.  In order to maintain a safe working environment and good reputation for the Department, it is necessary for all peace officers to conduct themselves honorably and professionally.  For this reason, County policy prohibits deputies from fraternizing with inmates in any way, including attempts to develop personal relationships or make contact with former inmates.  Deputy Campbell was aware of these behavioral expectations.  He was further aware of the County’s policy regarding appropriate use of the Criminal Justice Information System (CJIS).  These guidelines and the ramifications of related violations are found in a form signed by Deputy Campbell in 2000.

First Investigation

On March 31, 2004 Sergeant Mike Richards was informed of a possible violation of the County’s fraternization policy by Deputy Campbell.  This allegation included leaving a voicemail on the answering machine of Robert Potteiger, the father of former inmate Susan McKinley (maiden name Riley).  Further investigation found that Deputy Campbell had developed a relationship with former inmate Lisa Mercuri.  This relationship consisted of several text messages and phone conversations, as well as transporting Ms. Mercuri to San Jose to retrieve her personal belongings, stopping for lunch at a mall, and shopping for a gift for a fellow officer.   A similar relationship with inmate Sylvia Mejia was discovered.  Ms. Mejia wrote a sexually explicit letter to Deputy Campbell, which he kept in his locker.  She claims that he responded with a note saying “yes”; he claims that one non-sexual text message to the number provided was the only response made.

Sergeant Teeter conducted an Internal Affairs investigation in regards to seven allegations.  He sustained six of these seven, to wit: fraternizing with former inmates Lisa Mercuri and Michelle Martinez, fraternizing with inmate Sylvia Mejia, violating Sheriff’s Office Manual 206.01/04 by damaging his professional reputation, responding untruthfully to investigation questions, and finally violating Sheriff’s Office General Order 69 by accessing CJIS pertaining to Ms. Mercuri for personal reasons.  Teeter did not sustain the allegation that Deputy Campbell fraternized with former inmate Suzan McKinley.  This decision was agreed upon by three other officials.

Second Investigation

On October 16 and 17, 2004 another round of allegations was brought up for investigation.  Deputy Campbell was alleged to have been insubordinate by failing to follow orders from Sergeants James Dunn and Jose Mendoza pertaining to contact with inmate Patricio Salcido.  Deputies Lester and Gardepie reported that Deputy Campbell was passing inappropriate messages from Salcido to them.  Campbell was ordered to refrain from all conversation not directly related to the business of the inmate.  This was followed by a second order to have no further contact with inmate Salcido.  Deputy Campbell was reassigned to Control-7 to prevent this contact, but allegedly communicated with Salcido again despite these measures.

            An Internal Affairs investigation by Sergeant Teeter responded to five allegations: insubordination by speaking with Salcido about inappropriate issues; insubordination by communicating with Salcido despite orders not to; fraternization with Salcido by developing a personal relationship; dishonesty in responding to interview questions; and violation of Sheriff’s Office Manual 206.11.  Teeter found all five of the allegations to be sufficiently proven and therefore sustained.  This decision was agreed upon by three other officials.

            On February 17, 2005 Deputy Campbell received a Notice of Suspension with Pay and Notice of Intent to Take Punitive Action. Deputy Campbell was therein informed of his rights to submit a response to Sheriff Kanalakis within five (5) days.  The disciplinary action exercised was dismissal from duty on the grounds of the above findings, namely multiple fraternization violations, dishonesty, and misuse of CJIS. David Gossman, Business Agent ford Operation Engineers Local 3 submitted a Skelly response on behalf of Campbell on March 17, 2005.

Skelly Response

            In preparation of this response, Deputy Campbell and David Gossman reviewed all the findings, taped interviews, and documentation from the County’s investigations.  Their summary of investigation responds to eleven allegations.  The first pertains to Deputy Campbell’s transporting Lisa Mercuri to the rehabilitation center, buying her lunch at a mall, and shopping for gifts for fellow officers.  Deputy Campbell admits to this fraternization, though he denies waiting outside of Mercuri’s house.  The allegation is sustained.

            As to the second allegation, Deputy Campbell admits that he reviewed the files of Lisa Mercuri via the CJIS.  The allegation is sustained.

            The third allegation pertains to former inmate Susan McKinley.  Deputy Campbell admits to having contact with Susan (then Riley) when she was an inmate in Monterey jail.  At that time, she was dating Ken McKinley, now her husband, who had known Joseph Campbell for several years.  The extent of Campbell’s contact with Susan McKinley outside the jail was several phone calls and text messages of a general, friendly nature.  Robert Potteiger, Susan’s father, was interviewed during the investigation and reported hundreds of text messages on his cell phone requesting return calls to 776-3100.  Documentation from the cellular service provider shows that only one call was made, on April 11,2004.  It is therefore recommended that the allegation be re-classified to Not Sustained.

            The fourth allegation involves fraternization with former inmate Michelle Martinez.  Deputy Campbell denies any such interaction with Ms. Martinez, stating that he does not know who she is.  He did not recognize her photograph, nor recall any contact with her while she was in custody.  Ms. Martinez alleged Deputy Campbell passed her his phone number containing the number 595.  This slip of paper was never produced as evidence, nor does Deputy Campbell’s phone number include the numbers 595.  It is recommended that the allegation be re-classified to Not Sustained for lack of evidence.

            The fifth allegation relates to fraternization with former inmate Sylvia Mejia.  Ms. Mejia passed Deputy Campbell a sexually explicit note, which he kept in his locker.  He produced the note upon demand during the investigation.  Deputy Campbell denies calling Ms. Mejia, pursuing or encouraging any relationship with her.  Ms. Mejia claims that he gave her a note with a “yes” and a “smiley face”, but neither Campbell’s testimony nor the handwriting corroborates her claims.  It is recommended that the allegation be re-classified to Not Sustained for lack of evidence.

            Deputy Campbell admits to the sixth allegation that his friendly interaction with some of the female inmates could be construed as flirting.  The allegation is sustained.

            The seventh allegation pertains to dishonesty in the investigation responses.  Deputy Campbell denies that he was misleading or untruthful in his responses regarding Ms. Mejia, as discussed above, and Ms. Mercuri.  He denies being at Ms. Mercuri’s residence a second time and waiting 2-4 hours for her return.  This incident was reported by Ms. Mercuri and is not supported by evidence from either Mr. Mercuri or Ms. McKinley.  Her story is illogical and should not be taken as weighty testimony.  It is recommended that the allegation be re-classified to Not Sustained for lack of convincing evidence.

            Deputy Campbell denies the eighth allegation that he developed a personal relationship with inmate Patricio Salcido.  Campbell claims to treat Salcido as well as he would any other inmates, and Salcido similarly describes his relationship with Campbell as being as friendly as it is with other deputies.  There is no evidence of preferential treatment.  Deputy Campbell made one phone call for Mr. Salcido, to inform his wife that his visiting day had changed due to relocating within the jail.  Deputy Campbell denied warning Mr. Salcido that the female deputies were “out to get him”.  Further, Mr. Salcido never claimed that Deputy Campbell said such a thing in his taped interviews with Sgt. Mendoza or Sgt. Teeter.  It is recommended that the allegation be re-classified to Not Sustained.  The investigation and conduct of the deputy do not support the allegation of misconduct.

            Deputy Campbell denies the ninth allegation that he was untruthful about the manner in which the conversation with inmate Salcido was initiated on October 17, 2004.  Campbell claims that he was ignorant of Salcido’s new isolation cell location and that Mr. Salcido banged on his cell door to get his attention.  In his interview with Sgt. Teeter, Salcido reported a similar story, stating that he did not remember banging on the door but that he might have.  It is recommended that the allegation be re-classified to Not Sustained.

            The tenth allegation is that Deputy Campbell was insubordinate when he had a conversation with inmate Salcido.  On October 17, 2004 Deputy Campbell was interviewed by Sgt. Dunn and Sgt. Mendoza.  He was told not to pass messages from inmates to deputies and vice versa.  The sergeants did not recall specifically ordering Deputy Campbell that evening to refrain from contact with inmate Salcido.  However, Sgt. Mendoza did so the following morning.  Deputy Campbell argues that he was not given a clear order to stay away from inmate Salcido at the time the allegations were made.  It is recommended that the allegation be re-classified to Not Sustained.

            The final allegation pertains to Deputy Campbell’s insubordination on October 17, 2005 [sic].  Mr. Salcido alleged that Deputy Campbell passed him during his hour in the “dayroom” and signaled to him that he could no longer talk with him.  This incident was alleged to occur in the morning, when Salcido’s dayroom time was scheduled for 17:40 hours.  It is recommended that this allegation be re-classified to Unfounded.

DECISION

The Applicable Standard is Just Cause.

            Where there is no contractual definition, it is reasonably implied that the parties intended application of the generally accepted meaning that has evolved in labor-management jurisprudence:  that the “just cause” standard is a broad and elastic concept, involving a balance of interests and notions of fundamental fairness.[1]

Described in very general terms, the applicable standard is one of reasonableness:

…whether a reasonable (person) taking into account all relevant circumstances would find sufficient justification in the conduct of the employee to warrant discharge (or discipline)[2]

            As traditionally applied in labor arbitrations, the just cause standard of review requires consideration of whether an accused employee is in fact guilty of misconduct.  An employer’s good faith but mistaken belief that misconduct occurred will not suffice to sustain disciplinary action.  If misconduct is proven, another consideration, unless contractually precluded, is whether the severity of disciplinary action is reasonably related to the seriousness of the proven offense and the employee’s prior record.  It is by now axiomatic that the burden of proof on both issues resides with the employer.[3]

            The just cause standard has been seminally defined by Arbitrator Carroll Daugherty, and incorporates the following seven tests:

1.      Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

2.      Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?

3.      Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

4.      Was the company’s investigation conducted fairly and objectively?

5.      At the investigation, did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?

6.      Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?

7.      Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in his service with the company?[4]

If one or more of these questions is answered in the negative, then normally the just cause requirement has not been satisfied.[5]

The Applicable Burden of Proof is Clear and Convincing Evidence.

            In a case involving the discharge of an employee, the burden is on the employer to sustain its allegations, and to establish that there was just cause for the termination.  As the leading treatise in the area noted:

Discharge is recognized to be the extreme industrial penalty since the employee’s job, seniority and other contractual benefits, and reputation are at stake.  Because of the seriousness of the penalty, the burden generally is held to be on the employer to prove guilt of wrongdoing, and probably always so where the agreement requires “just cause” for discharge.[6]

In this context, it is appropriate for an arbitrator to demand clear and convincing evidence.  As Arbitrator Richman explained:

The imposition of a lesser burden than clear and convincing proof fails to give consideration to the harsh effect of summary discharge upon the employee in terms of future employment.[7]

Only if misconduct in the instance that led to the termination is proven can an arbitrator go on to address the question of appropriateness of disciplinary action.

Has the Just Cause Standard Been Met?

We turn to the first of Arbitrator Daugherty’s tests for the existence of just cause, namely whether the Employer provided Deputy Campbell with forewarning of the possible and/or probable consequences of his conduct.  Deputy Campbell has admitted his awareness of the County’s fraternization policy and the warnings given to him regarding his interaction with several inmates.  Additionally, he signed a form acknowledging the appropriate and restricted use of CJIS and was aware that disciplinary action would result from violating that policy.  More specifically, Deputy Campbell acknowledged by his signature that misuse of CJIS could lead to immediate dismissal, criminal, and/or civil action.

As to the second test, whether the Employer’s rule or managerial order reasonably related to the orderly, efficient, and safe operation of the Employer’s business, the County has argued convincingly that fraternization undermines the deputies’ authority and reputation needed to maintain a safe facility and a credible force.  The rules pertaining to the use of CJIS are reasonable guidelines to protect confidential information, and are imposed on the County by the State of California Penal Code.

With reference to the third element of just cause, the Employer did, before disciplining Deputy Campbell, make an effort to discover whether he did in fact violate or disobey a rule or order of management.  Neither Deputy Campbell nor the Union have ever disputed that certain violations of the fraternization policy did in fact occur, and the Employer conducted a full and fair investigation and obtained supporting testimony.  This includes records of files accessed on the CJIS, a sexually-explicit letter from Ms. Mejia kept in Deputy Campbell’s locker, and testimony from inmates and fellow officers.

As to the fourth element of just cause, the fairness and objectivity of the investigation, I find the Employer met its burden of proof.  Although Deputy Campbell himself admitted to violating policy by contacting and transporting former inmate Lisa Mercuri, the County conducted a full investigation of each allegation, performed a test to verify Deputy Campbell’s claim that Salcido banged on his cell door, and interviewed fellow deputies and all inmates involved.

The fifth element of just cause addresses whether the “judge” obtained substantial evidence or proof that the employee was guilty as charged.  I find that the Employer did meet its burden with respect to establishing just cause in this regard, for the reasons already articulated above. 

With respect to the sixth element of just cause, the question of whether the Employer’s application of rules, orders and penalties was nondiscriminatory, I find that the Employer did establish that other employees determined to have misused CJIS have in fact been terminated.  The Union’s Exhibit A shows that past instances of fraternization involving violation of CJIS have all resulted in termination, regardless of how exactly the gathered information was used.  It is clear that committing criminal activity by misuse of CJIS has not been tolerated by the County in any of the recorded cases.

The decision in this case hinges on the seventh and final element of just cause, the question of whether there was a reasonable relationship between the degree of discipline imposed on Deputy Campbell and the seriousness of the proven offense.

Is Termination the Appropriate Penalty?

            The Union has made a case for a lesser form of disciplinary action, such as suspension without pay.  One basis for this argument, which has merit, is that the testimony of convicted criminals should not be weighed as heavily as that of upright citizens or as material evidence.  Deputy Campbell performed his duties satisfactorily for a number of years and should be given credit for that fact.  Unless otherwise proven, it should be assumed that Deputy Campbell was making an effort to abide by the pledge he took.  Indeed, upon further investigation and reflection it appears that several of the original allegations are not supported by convincing evidence, including any finding that relates to any alleged improprieties concerning Deputy Campbell’s interaction with Inmate Salcido.  However, such is not the case with Ms. McKinley who appeared to be a trustworthy and truthful witness with no incentive to lie.  Additionally, it is not clear what motivation Ms. Mercuri would have had to tell the truth about one incident and fabricate another.

That said, Deputy Campbell, in his Skelly Response, has admitted to two of the allegations, which are supported by other testimony and documentation.  It is undisputed that Deputy Campbell made contact with Lisa Mercuri outside of the jail in violation of County policy.  It is further undisputed that Deputy Campbell accessed CJIS files pertaining to Ms. Mercuri.  These files did not directly relate to her needs as an inmate or his duties as an officer.

            If the fraternization attested to by Campbell, Mercuri, and the others involved constituted the whole of the violations, then suspension without pay would be a reasonable punitive action.  The Union has shown that Deputy Campbell willingly and truthfully shared about his taking Lisa Mercuri to San Jose.  When asked, he cooperatively produced the sexually explicit letter from Ms. Mejia; whether he responded favorably to her advances remains unclear.  As for inmate Salcido, it seems reasonable to believe that Deputy Campbell did not intentionally violate fraternization policy when he made a phone call to Salcido’s wife.  He was just trying to be a good employee. 

            Unfortunately, Deputy Campbell’s friendliness with female inmates crossed the line of professionalism into crime when he used the CJIS files to look into their personal lives.  We may not be sure of the extent of his involvement with Ms. Mejia, Ms. Martinez, Ms. Mercuri and others.  Deputy Campbell may not have actively used all the information gathered on CJIS.  However, we have reason to conclude that Deputy Campbell should no longer be entrusted with the position of peace officer for the plain and simple fact that he engaged in criminal activity while working at the jail.

His violation of CJIS alone makes termination an appropriate penalty.  It is proven by computer records that Deputy Campbell accessed information about former inmate Mercuri and otherwise abused the system by searching for files unrelated to his duties.  The form Deputy Campbell signed clearly states that any employee who is responsible for misuse of the system is subject to “immediate dismissal”, and is guilty of a misdemeanor.   Among the options laid out in this State policy, which allows for criminal and/or civil charges to be made, termination is a lesser form of discipline. Although based simply on the issue of fraternization it would be difficult to uphold his termination, Deputy Campbell’s knowingly engaging in criminal activity cannot be excused.  California State Penal Code 11142 and 13303, Monterey County MOU 69.3.4 and 12.10, and past penalties for CJIS violations all support the County’s termination of Deputy Campbell. 

CONCLUSION

The burden is on the Employer to show by clear and convincing evidence that just cause existed to terminate the Grievant, Joseph Campbell.  The totality of the evidence shows that the grievant’s conduct violated policies pertaining to fraternization and use of the Criminal Justice Information System.  The Employer has met its burden of proof. 

AWARD

The grievance is denied. All fees and expenses charged by the Arbitrator shall be borne equally by the parties, as provided for in the MOU 12.13,

L. Each party shall bear its own costs; except that the expense of the hearing officer, the cost of a certified court reporter and the expense of a transcript of the hearing for the hearing officer shall be shared equally by the parties involved in the action being appealed.

__________________________

David Gaba, Arbitrator

                                                                        December 15, 2006
                                                                        Seattle, Washington



[1] Rabanco Recycling, 118 LA 1411 (2003).

[2] RCA Communications, Inc. 29 LA 567, 571 (Harris, 1961). See also Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947).

[3] State of Alaska, 114 LA 1305 (2000), 
[4] Enterprise Wire Co., 46 LA 359, 363-4 (1966).
[5] Enterprise Wire Co., 46 LA 359, 362 (1966).
[6] Elkouri and Elkouri, How Arbitration Works 905 (5th Ed. 1987).
[7] General Telephone Co. of California, 73 LA 531, 533 (Richman, 1979).  See also:   Atlantic Southeast Airlines, Inc., 101 LA 515 (Nolan, 1993) (using clear and convincing standard); J. R. Simplot Co., 103 LA 865 (Tilbury, 1994) (same); Collins Food International, Inc., 77 LA 483, 484-485 (Richman, 1981) (same).  The Employer bears this burden of proof both with respect to proving the alleged violation, and with respect to demonstrating the appropriateness of the penalty.  Pepsi-Cola Co., 104 LA 1141 (Hockenberry, 1995).

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
Google
 
Web www.LawMemo.com 
This form will search the LawMemo web site. 
It does not include Key Word Search.

 

 

LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028