of Ohio, Department of Public Safety and Fraternal
Order of Police
OPINION AND AWARD
In the matter of Arbitration
Order of Police, Ohio Labor Council, Inc.
State of Ohio, Department of Public Safety
An arbitration hearing was conducted on June 19, 2006, in the offices of
the Fraternal Order of Police, Columbus, Ohio.
The parties stipulated the issue in this case
to be: ďWas the Grievant
Tony Storey given a three (3) day fine by the Employer for just cause?
If not, what shall the remedy be?Ē
Storey has been an enforcement officer with the Ohio Investigative Unit of the
Ohio Department of Public Safety since 2000.
He is charged with violation of Department of Public Safety Policy
501.02 (A)(4)-Performance of Duty. The
Investigative Unit of the Ohio Department of Public Safety is the entity of
state government that provides investigative and law enforcement services
dealing with the illegal use and distribution of drugs and alcohol.
The Grievant had in
his possession fifty-three (53) ID cards for approximately six (6) months before
turning the IDís over to the evidence officer. The IDís were either fake or had expired.
In late April or early May 2005 Agent Storey
approached Assistant Agent in Charge Diane Corey and told her about the IDís
he had in his possession. Assistant
Agent in Charge Corey testified that the Grievant told her he had gotten the
IDís from the former Sober Truth Instructor. 
Assistant Agent in Charge Corey testified that
she instructed the Grievant to get documentation from the former instructor,
Agent Sterling, regarding the IDís. She
then contacted the evidence officer.
Later Agent Sterling informed Assistant Agent
in Charge Corey that she had given Agent Storey only a few ID cards.
The Grievant had the IDís in his possession
in an unsecured filing cabinet until he contacted Assistant Agent in Charge
The Highway Patrol conducted an investigation
in this matter.
The Director issued discipline on August 2, 2005, in the form of a three
(3) day fine for violation of the Performance of Duty Policy (501.01(A)(4).
A grievance was filed August 3, 2005, contending the three (3) day fine
was not for just cause.
CONTRACT PROVISIONS AND RULES:
19 Ė DISCIPLINARY PROCEDURE
No bargaining unit
member shall be reduced in pay or position, suspended
or removed except
for just cause.
The Employer will follow the principles of
progressive discipline. Disciplinary action shall be commensurate with the
offense. Disciplinary action shall include:
Verbal Reprimand (with appropriate notation in employee's file);
3. One or more fines in the amount of one (1) to five
(5) days pay, for any form of discipline. The
first time fine for an employee shall not exceed three (3) days pay;
Leave reduction of one or more day(s);
However, more severe discipline may be imposed at any
point if the infraction or violation merits the more severe action.
The Employer, at its discretion, is also free to
impose less severe discipline in situations which so warrant.
The deduction of fines from an employeeís wages
shall not require the employeeís authorization for the withholding of fines
from an employeeís wages.
who fail to perform assigned duties because of an error in judgment or otherwise
fail to perform satisfactorily a duty of which such employee is capable, may be
charged with inefficiency.
Management believes Agent Storey acted with
poor judgment and that the three (3) day fine is progressive.
It notes that he previously received a one (1) day penalty.
The Employer argues that Agent Storey had in
his possession fifty-three (53) ID cards for approximately six (6) months before
turning them over to the evidence officer.
Agent Storey talked to his supervisor in April
or May and told her about the ID cards but did not indicate the large number of
cards in his possession.
The Employer notes that while Agent Storey had
reason to have a few ID cards in his possession, which he obtained from the
previous Sober Truth Instructor, Agent
Sterling, he did not get all of cards
The Employer notes that while Agent Storey was
being interviewed by Highway Patrol Investigator, Cassandra Kocab, he changed
his story. First Agent Storey told
the investigator that Agent Sterling provided him with the ID cards and then,
when confronted with the Statement of Agent Sterling, he stated that the IDís
might have been seized in other cases.
The Employer argues that the Grievant, in his
role as an enforcement officer, must be held to a higher standard regarding the
seizure and possession of property.
Management believes, ďIt is not an acceptable
practice to have 53 ID cards laying around the office.
IDís left in an unsecured filing cabinet have the potential for being
taken and used in an inappropriate manner.Ē 
The Employer addresses the severity of the
three (3) day fine by noting the existence of a one (1) day fine already on the
Grievantís deportment record, and asks the
Arbitrator to deny the grievance.
OF THE FRATERNAL ORDER OF POLICE:
The FOP argues that
there was no policy in place governing the handling of fake IDís.
It notes that none of the 53 IDís was real. (Some were fake and some
were expired) and that the Grievant had a legitimate use for fake IDís in his
role as a Sober Truth Instructor.
FOP explained that this case arose because of attention drawn by another case
involving Agents Chad Fannin and Gavin Stanton.
One aspect of that case involved the use
of an ID (believed to be fake) by a police informant in Troy, Ohio.
The fake ID (not one of the 53 involved in this case) was provided by
Agents Fannin and Stanton and was subsequently used by the police informant when
stopped for a traffic violation. In
the Fannin Ė Stanton case the ID was actually a valid ID which belonged to a
In the course of the investigation of this matter, the Employer became
aware that as many as 110 IDís were confiscated in an earlier action at the
Asylum Club. These IDís were not
secured in the Dayton Office and apparently provided the ID used in the Fannin
Ė Stanton Case.
The FOP contends that the negative public
attention brought by this case has led to the current action against Agent
Because there was no policy in place and no evidence that Agent Storey was ever given a direct order or any training or instruction on how to handle confiscated IDís, the FOP argues that he did nothing wrong and did not violate rule 501.02(A)(4)
The Employer was
able to prove that fifty-three (53) IDís were in the possession of Agent
Storey for approximately six (6) months and they were not secured in a locked
facility or turned in to the evidence officer until June 22, 2005.
The question is whether the possession of those IDís and these actions
constitute a violation of rule 501.02(A)(4).
Both Deputy Director Pohlman and Agent Corey
admitted there was no policy in place regarding the handling of property at the
time of the incident giving rise to this grievance.
Highway Patrol Investigator Cassandra Kocab also concluded that there was
no policy in place. In her report
she notes: ďI reviewed Ohio
Investigative Unit Policy 200.09, Handling and Disposition of Evidence, in its
entirety and did not locate any provisions that apply to recovered or found
property. I also contacted Acting
Deputy Director Pohlman who verified that their agency does not have a policy
that deals with property not associated with a criminal offense or
administrative violation.Ē 
Deputy Director Pohlman admitted that he had no
knowledge if Agent Storey was ever given instruction or a direct order regarding
how to handle the 53 IDís.
Deputy Director Pohlman testified that Agent
Storey used poor judgment by not securing the IDís in a locked facility.
The Employer Representative also argues that the Grievant used poor
judgment by not turning the 53 IDís over to the evidence officer.
A review of recent cases in which poor judgment
was a determining factor reveals a myriad of really serious lapses in judgment.
One case involved the use of drugs on company property (NTN-Bower Corp.
122 LA 90) and another involved intimidation of a citizen (City of Melborne, Fla
121 LA 1345). A third case involved
an officer who violated five sections of the Code of Conduct (City of Bartlow,
Fla 121 LA 799). A fourth involved a matter of endangering public safety (City
of Birmingham, Al 121 LA 398.)
In all of these cases, the poor judgment displayed is something that is
clearly understood by other members of the workforce whether or not those
employees agree with the outcome of the particular case.
In this case the evidence is convincing that
employees were not aware of, or trained on the expectations of Management in the
absence of a policy regarding the proper way to handle and secure property such
as the IDís.
Agent Sterling admitted that she confiscated a
fake ID in an OSU incident in 1997 and she kept the card for training purposes.
Agent Corey, who was Agent Storeyís
supervisor at the time of this incident, admitted that she had approximately
fifty (50) ID cards in a binder that she used for training.
Neither indicated that they kept the IDís in a locked facility.
It is clear that, at the very least, there was
a great deal of confusion about the expectations of Management regarding the
logging and securing of ID cards or other contraband not connected to a specific
Arbitrator E. William Lewis in his decision in the related cases referred
to by FOP, noted: ďWhat responsibility does the Employer have in the confiscated
evidence/property (ID) issue? Evidence
and testimony showed that some confiscated evidence and property (ID) was not
held in a secure place at the Dayton OIU Office. In addition no written rule or policy regarding agent use of
confiscated IDís was introduced into evidence.Ē 
From the testimony of various witnesses it
appears that Management has now remedied this matter by adopting policies on the
subject. If this is the case, then
that should resolve future problems.
It is not reasonable for Management to punish
employees where policy does not exist and further, there is no evidence that
employees have been given clear direction regarding the expectations of
This Arbitrator, in a previous case, was
faced with a similar issue regarding the logging in of drug paraphernalia.
I concluded in that case that no violation could be proven because of the
lack of knowledge on behalf of the employees regarding management expectations
in relation to the handling of such items.
In this case Management has tried to get at the
same type of issue by claiming ďpoor judgment.Ē
That simply will not suffice.
The Employer attempted to prove that Agent
Storey was not honest or forthcoming regarding his statement surrounding the
source of the IDís. It notes that
he first stated he got the IDís from Agent Sterling and later recanted his
story under questioning by Highway Patrol Investigator Kocab
I do not find these statements to be
irreconcilable. It is apparent from
the testimony that many people were anxious surrounding the events of the Fannin
Ė Stanton charges. Agent Storey
sought guidance from his supervisor regarding IDís that he no longer wanted to
have in his possession. He did
receive IDís from Agent Sterling although not the total number he had in his
I found the testimony of Agent Storey to be
plausible and credible regarding this matter.
If an employer has a clearly delineated policy
and has trained employees as to the application of that policy, then certainly
there is an expectation that all employees will comply.
In the absence of written policy, there must be
evidence that employees have received clear direction regarding the expectations
this case the evidence clearly shows there were no policy and no clear direction
given. In the absence of both,
Management has failed to convince this Arbitrator that Agent Storey displayed
poor judgment. Consequently there is no proven violation of rule 501.02(A)(4)
The grievance is granted.
Grievant shall be repaid for the three (3) day fine.
Any record of the three (3) day fine shall be purged.
If any other loss occurred, the Grievant shall be made whole.
Issued at London,
Ohio this 19th day of July, 2006.
N. Eugene Brundige, Arbitrator
 Sober Truth Instructors teach in schools and instruct bar owners regarding the liquor laws of the state.
 Employers Opening Statement, Page 2
 Management Exhibit 1, Page 3
 Grievance Numbers 15-00-05728-82-05-02 (Fannin) and 15-00-05729-83-05-02 (Stanton). Issued 04/08/06.
 Grievance Number 15-00-031118-0173-05-02 (Darin Plummer) issued 10/17/05
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028