2007 NAC 121 City of Green Bay and Green Bay Protective Police Association

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Title: City of Green Bay and Green Bay Protective Police Association
Date: 2007
Arbitrator: Stanley Michelstetter
Citation: 2007 NAC 121

BEFORE THE ARBITRATOR

In the Matter of the Arbitration of a Dispute Between

CITY OF GREEN BAY (POLICE DEPARTMENT)

and

GREEN BAY PROTECTIVE POLICE ASSOCIATION

Case 368
No. 64978
MA-13075

Appearances:

Dean R. Dietrich, Ruder Ware, LLSC, Attorneys at Law, 500 Third Street, Wausau, Wisconsin, appearing on behalf of the Employer. [1]

Thomas J. Parins, Parins Law Firm, S.C., Attorneys at Law, 422 Doty Street, Green Bay, Wisconsin, appearing on behalf of the Association

INTERIM ARBITRATION AWARD

Green Bay Police Protective Association, herein referred to as the “Association,” and City of Green Bay (Police Department), herein referred to as the “Department,” jointly selected the undersigned from a panel of arbitrators from the staff of the Wisconsin Employment Relations Commission to serve as the impartial arbitrator to hear and decide the dispute specified below. The arbitrator held a hearing on June 28, 2006, in Green Bay, Wisconsin. Each party filed a post-hearing brief; the last of which was received September 11, 2006. Thereafter, the parties agreed at the arbitrator’s request to re-open the record to add supplemental exhibits. That process was completed July 27, 2007.

ISSUES

The parties were unable to stipulate as to the issues in this case, but agreed that I could phrase them. The issues for the interim decision relate to the procedures to be followed with respect to the underlying dispute.[2] I phrase them as follows:

1. Are the issues now presented by the Association, arbitrable?

2. If so, did the Employer violate the agreement by dismissing Officer Fietzer for non-disciplinary reasons without having first proceeded before the appropriate tribunal and obtained a final order sustaining his dismissal?

3. If the answer to 2 is “no,” what, if anything, is the proper procedure to be followed with respect to the non-disciplinary dismissal.

4. If the answer to issue 2 above is “yes” what is the appropriate remedy?

5. If the Department elects to proceed with disciplinary charges before the Police and Fire Commission for the related criminal convictions and underlying conduct, how, if at all, does Article 26 apply?

FACTS

The City of Green Bay is a Wisconsin municipality. One of its departments is the Police Department. The Department is headed by a Police Chief Craig Van Schyndle who has the authority provided by Wisconsin law. The Association is the collective bargaining representative of various sworn police officers of the Department. At the material times, one of the police officers represented by the Association was Tony Fietzer, who was a Patrol Officer employed by the Department until his dismissal which resulted in the grievance which is the subject of this dispute.

On October 21, 2003, Officer Fietzer was arrested with respect to allegations of domestic abuse against his spouse. The Department suspended him with pay on October 22, 2003, because it concluded that the charges might have an impact on his continued employment.

Thereafter the Chief had communication with the Association through its legal counsel concerning the possibility of the charges affecting Officer Fietzer’s employment. He was subsequently convicted of three criminal counts in conjunction with that arrest, Intimidation of a Victim/Dissuade Reporting-Domestic Abuse Incident and two counts of Bail Jumping-Domestic Abuse Incident. The Association and the Department discussed and disagreed as to whether Officer Fietzer was subject to the prohibition under, 18 U.S.C. Sec’s. 922(g), 925(a) (2000) of the Gun Control Act of 1968 and the Lautenberg Amendment from carrying a firearm for any purpose, including, but not limited to, in connection with his duties as a police officer for the Employer. Chief Van Schyndle requested in a letter dated November 30 that the Association provide him with a detailed legal argument as to why the Lautenberg Amendment did not apply and other relevant information in order that he might determine what action to take. The Association responded thereto with the arguments advanced at the arbitration hearing. Chief Van Schyndle made a final determination and dismissed Officer Fietzer for the non-disciplinary reason that he no longer met the minimum qualifications of the job, namely he no longer could lawfully carry a firearm.

The Association filed a grievance on behalf of Officer Fietzer on February 1, 2005, alleging that 1) the Chief does not have the authority to dismiss Officer Fietzer, but may only file charges with the Fire and Police Commission seeking his dismissal, 2) Article 26 requires that any dismissal be pursuant to Sec. 62.13(5), Stats. It sought the immediate reinstatement of Officer Fietzer with full back-pay. The Chief responded that the dismissal was non-disciplinary and, therefore, not subject to Article 26 or Sec. 62.13, Stats. He also noted that the Department reserved the right to proceed before the Police and Fire Commission on disciplinary grounds, if appropriate. The Association appealed the grievance, reiterating its previous positions, but also alleging that Officer Fietzer is entitled by law to carry a firearm. The grievance was properly appealed through the grievance procedure to arbitration. It was appealed to the last step, the Personnel Committee, February 16, 2005, and denied July 1, 2005. The request for arbitration was filed with the WERC on July 18, 2005. The hearing in this matter was held July 14, 2006, over one year later. The delay was largely occasioned by the fact that the assistant city attorney representing the Department left the employ of the city.

RELEVANT AGREEMENT PROVISIONS

ARTICLE 1. RECOGNITION/MANAGEMENT RIGHTS

. . .

1.03 MANAGEMENT RIGHTS. The Union recognizes the prerogative of the City, subject to its duties to collectively bargain, to operate and manage its affairs in all respects in accordance with its responsibilities, and the powers and authority which the City has not abridged, delegated or modified by this Agreement, are retained by the City, including the power of establishing policy to hire all employees, to determine qualifications and conditions of continued employment, to dismiss, demote, and discipline for just cause, to determine reasonable schedules of work, to establish the methods and processes by which such work is performed. The City further has the right to establish reasonable work rules, to delete positions from the Table of Organization due to lack of work, lack of funds, or any other legitimate reasons, to determine the kinds and amounts of services to be performed as pertains to City government and the number and kinds of classifications to perform such services, to change existing methods or facilities, and to determine the methods, means and personnel by which City operations are to be conducted. The City agrees that it may not exercise the above rights, prerogatives, powers or authority in any manner which alters, changes or modifies any aspect of the wages, hours or conditions of employment of the Bargaining Unit, or the terms of this agreement, as administered, without first collectively bargaining the same or the effects thereof.

. . .

ARTICLE 3. GRIEVANCE PROCEDURES AND DISCIPLINARY PROCEEDINGS

3.01 GRIEVANCE DEFINITION. A grievance is defined as any complaint involving wages, hours and conditions of employment of members of the bargaining unit, other than proceedings conducted pursuant to Section 62.13, Wis. Stats. A grievant may be an employee or the Union. Upon the mutual agreement of the parties hereto, grievances involving the same issues may be consolidated in one proceeding.

3.02 SUBJECT MATTER LIMIT. Only one subject matter shall be covered in any one grievance. A written grievance shall contain the name and position of the grievant, a clear and concise statement of the grievance, the relief sought, the date the incident or violation occurred and the signature of the grievant and the date.

. . .

3.05 WAIVER OF STEPS. Steps in the procedure may be waived by mutual agreement of the parties.

3.06 STEPS AND PROCEDURE.

(1) STEP ONE. The grievant or a Union representative on his/her behalf shall have the right to present the grievance in writing to the Chief within fifteen (15) working days after he/she or the Union knew or should have known of the event giving rise to such grievance. The Chief shall furnish the grievant and the Union representative an answer within five (5) working days after receiving the grievance.

(2) STEP TWO. If the grievance is not satisfactorily resolved at the first step, the grievant or the Union representative shall prepare a written grievance and present it to the Human Resources Director within ten (10) working days of the Chief’s response. The Human Resources Director shall review the grievance and shall respond in writing within five (5) calendar days after receipt of the written grievance.

(3) STEP THREE. If the grievance is not resolved at the second step, the grievant or the Union representative shall present the written grievance to the Personnel Committee within five (5) working days of the Human Resources Director’s response. The Personnel Committee shall review the grievance and respond in writing within five (5) days after their decision, which shall be made at the next regularly scheduled Personnel Committee meeting. In reaching their decision the Personnel Committee may hold a fact-finding hearing after having received a written statement of fact and position by each party. The grievant and the Union shall be given a five (5) day notice of said hearing.

(4) STEP FOUR. If no agreement is reached in step 3, the dispute may be referred to arbitration. The party desiring arbitration shall, within fifteen (15) days of receiving the Personnel Committee decision, petition the Wisconsin Employment Relations Commission for arbitration with a copy of such petition sent to the other party.

3.07 GRIEVANCE ARBITRATION PROCEDURE.

(1) ACCESS TO RECORDS. The employee or his/her bargaining unit shall have access to the City’s investigative file and all other pertinent documents or information once a disciplinary action has been meted out, but no sooner than three (3) days after such discipline has been meted out. Access to the employee’s personnel file shall be subject to the restrictions of Section 103.13 (3) Wis. Stats. Nothing in this paragraph shall prohibit or restrict the City from taking a statement of the employee as part of an investigation to determine whether the employee should be disciplined.

(2) DISCLOSURE OF WITNESSES. Any time after step 2 of the grievance procedure, either party may demand a list of witnesses that the other party intends to call by furnishing the other party with a list of witnesses of the demanding party. The other party, upon whom the request is made, shall respond to that request within three (3) working days of the date of the request. The parties shall be under a continuing obligation to update and supplement the list of witnesses so provided. Any witness not identified in response to a demand before the date of the informal pre-hearing conference shall not be allowed as a witness in the case in chief in these proceedings.

(3) DEPOSITIONS.

(a) Once a witness has been identified pursuant to the procedures set forth above, that witness may be deposed.

(b) Either party may identify witnesses they intend to call in these proceedings without receiving a demand from the other party. Upon identification of such witness, the party so identifying the witness shall, upon notice to the other party, be permitted to depose that witness for purposes of perpetuating testimony for the grievance hearing.

(c) Any depositions taken, whether during the investigation of the actions leading up to the discipline or at any point thereafter, may be used by either party at any step in the grievance procedure as may be otherwise provided by law.

3.08 COSTS. The party initiating the grievance shall pay for the administrative costs for initiating arbitration. Any other expenses or costs of the arbitration proceeding, including fees of the arbitrator, shall be split equally between the parties. The arbitration hearing shall be conducted in the City of Green Bay at a mutually agreeable time.

3.09 DECISION OF ARBITRATOR. The decision of the arbitrator shall be limited to the subject matter of the grievance. The arbitrator shall not modify, add to or delete from the express terms of this Agreement. The arbitrator’s decision shall be final and binding.

3.10 REPRESENTATIVES. The Bargaining Unit may appoint representatives of the bargaining unit and shall inform the City of the names of the individuals so appointed and of any change thereafter made in such appointments. The City shall allow the representatives the necessary time to process grievances during the course of the duty day.

. . .

ARTICLE 26. DISCIPLINE

26.01 RULES AND REGULATIONS. For disciplinary purposes, administrative or otherwise, the substantive rules and regulations for the conduct of members of the Police Department shall be as set forth in the policy and procedure manual for the Green Bay Police Department, as amended from time to time, excepting that no provisions in said manual which are subject to collective bargaining shall be valid until collectively bargained. In the event such rules and regulations conflict with the ordinances of the City of Green Bay, laws of the State of Wisconsin or United States, or this agreement, said ordinances, laws or agreement shall prevail.

26.02 OFF-DUTY CONDUCT. Off-duty action or inaction shall not be considered as grounds for discipline unless the conduct in question:

(1) Has been the basis for a conviction in a court of law of any local ordinance, quasi criminal or criminal law; or

(2) Is done under or pursuant to the officer’s use of authority or powers of a sworn Green Bay Police Officer, or under the color of the officers (sic) articulated use of the same; or

(3) Is in violation of any rules and regulations governing off-duty conduct existing in the Green Bay Police Department Policy and Procedure Manual, excepting that Section I, Chapter 2, Paragraph D, of the existing Policies and Procedures Manual will be deleted.

26.03 INTERNAL INVESTIGATION. Internal investigations conducted by the City of Green Bay Police Department shall be subject to the following rules:

(1) The subject matter of any investigation shall be confined solely to those areas that are being investigated because the Department has grounds for reasonable suspicion that an officer may be subject to disciplinary action. All other areas of inquiry shall be avoided so as to ensure that investigators do not intrude upon the privacy of any officer. In this regard, the parties acknowledge the danger of questions not relevant to any specific investigation resulting in rumor and innuendo.

(2) When an officer under suspicion is questioned, that officer shall be first advised of the factual basis of the suspicion and advised as to what law, rule or regulation the officer is being suspected of breaking. The officer being investigated shall be provided a copy of pertinent writings whenever possible. Also, the officer shall be given the name of the complainant except when the complainant is an employee of the Police Department or has requested anonymity.

(3) Any time an investigation exonerates the officer, management will maintain the investigation file but there will be no record of the investigation in the officer’s personnel file. Such investigation shall not form the basis for future discipline; however, it may be used by management in following-up on future complaints.

26.04 DISCIPLINARY PROCEDURES

(1) Section 62.13, Wisconsin Statutes. Suspension(s), reduction in rank, suspension and reduction in rank, and dismissal of bargaining unit members shall be governed by the procedures set forth in Section 62.13, Wis. Stats.

(2) All other disciplinary proceedings shall be governed by the Grievance Procedure.

. . . ."

PAST AGREEMENT PROVISIONS

1985 AGREEMENT

“. . .

APPENDIX A

GRIEVANCE PROCEDURE

Both the Bargaining Unit and the City recognize that grievances and complaints should be settled promptly and at the earliest possible stage and that the grievance process must be initiated within five (5) days of the incident or within thirty (30) days of the officer learning of the incident. Any grievance not reported or filed within the time limits set forth above shall be invalid.

Any difference of opinion or misunderstanding which may arise between the Bargaining Unit and the City shall be handled in the following manner:

. . .

(D) All grievances relating to wages, hours, and working conditions, or any other matter under jurisdiction of the Personnel Committee, shall be submitted to that committee. They shall, within five (5) days, set up an informal meeting with all parties involved up to this point. Within seven (7) days, (Saturday, Sunday, and holidays excluded) after this meeting, a determination shall be made and reduced to writing and copies submitted to all parties involved.

. . .

(F) If the grievance is not settled in mediation, the aggrieved party may, within five (5) days of the mediation session, submit the grievance to an arbitrator. The arbitrator shall be selected by the Wisconsin Employment Relations Commission. The decision of the arbitrator will be final and binding on all parties except for judicial review. The cost of the arbitration will be borne equally by the City and the Bargaining Unit.

1986 AGREEMENT

“ . . .

ARTICLE III

GRIEVANCE PROCEDURES & DISCIPLINARY PROCEEDINGS

I. GRIEVANCES

A grievance is defined as any complaint involving wages, hours and conditions of employment of members of the bargaining unit, other than proceedings conducted pursuant to Section 62.13, Wisconsin Statutes. A grievant may be an employee or the Union. Upon mutual agreement of the parties hereto, grievances involving the same issues may be consolidated in one proceeding.

. . .

E. Arbitration:

(4) Decision of the Arbitrator. A decision of the arbitrator shall be limited to the subject matter of the grievance. The arbitrator shall not modify, add to or delete from the express terms of this Agreement. The arbitrator’s decision shall be final and binding.

II. DISCIPLINARY PROCEEDINGS

A. All Discipline Except Termination.

(1) The Chief may discipline an employee short of termination for just cause. In the event of such discipline, the employee or the Union may grieve the discipline under the grievance procedure set forth above in this article, unless the employee exercises the rights available to the employee under Section 62.13, Wisconsin Statutes. In the event the employee exercises said Section 62.13 rights, those rights shall be the employee’s sole remedy and the discipline shall not be grievable. The Chief shall file charges with the Board only if the officer wishes to proceed under Section 62.13.

(2) If the Chief determines that discipline short of termination of employment is justified as to any officer or officers, it shall advise the officer in question of the determination and the basis for the determination. Upon receipt of written notification of discipline short of termination of employment, the involved officer in question may grieve the determination of the Chief under the grievance procedure in Section I of this agreement, but only if the officer files before or at the time of the filing of the grievance under Section I a written election and waiver with the City stating:

a) That the officer is electing to proceed under the terms of the grievance procedure in the labor agreement;

b) That the grievance procedure in the labor agreement shall be the officer’s only remedy as to the grievance in question;

c) That the officer is aware of the rights the officer may have to proceed under Section 62.13(5)(c), Wis. Stats., if the discipline is a suspension but chooses not to proceed under the procedure of Section 62.13(5)(c), Wis. Stats., and that the officer waives any and all rights to proceed under Section 62.13(5)(c), Wis. Stats.

B. Filing of Charges to Terminate Employment. The Chief may determine to file charges with the Board of Police and Fire Commissioners pursuant to Section 62.13(5), Wis. Stats., only in those instances where he determines there is just cause for termination of employment. That determination shall be grievable under the procedure set forth in Section I of this article. The officer shall be notified of such determination and the basis for the determination, and that the Chief intends to file charges with the Police and Fire Commission pursuant to Section 62.13, Wis. Stats., seeking such termination at least fifteen (15) days prior to the filing of charges to permit the filing of a grievance.

(1) If the Chief’s determination is found to be reasonable and for cause by an arbitrator in Section E of the Grievance Procedure, that decision may be introduced as the best evidence before the Board of Police and Fire Commissioners. The Arbitrator shall determine whether the Chief’s determination to file charges with the Board of Police and Fire Commissioners is reasonable and for cause. The arbitrator shall not determine whether the act of termination is appropriate, but rather, whether there exists a reasonable basis and cause for the Chief to seek a hearing on the reason of termination before the Board of Police and Fire Commissioners. In the event that there is a finding that the Chief’s determination to file charges is reasonable and for cause, the Chief shall then have the right to file charges with the Police and Fire Commission under Section 62.13, Wis. Stats., and seek termination of employment of the officer in question. If the Chief’s determination is not grieved or is found to be reasonable and for cause by an arbitrator, such charges may then be filed and an employee’s sole recourse from the decision of the Board of Police and Fire Commissioners shall be in accordance with the appeal procedures provided in Section 62.13, Wisconsin Statutes. The Chief’s determination to file charges may be amended at any step of the Grievance Procedure to another form of discipline including suspension.

(2) In the event that the Chief’s determination to file charges is not found to be reasonable and for cause by the arbitrator, the Chief may proceed to impose any discipline less than termination as was found reasonable by the arbitrator pursuant to the Grievance Procedure if any such discipline is set out in the arbitrator’s decision, said imposition of discipline shall not be grievable or otherwise subject to appeal whatsoever under the Grievance Procedure of the labor contract or the provisions of Section 62.13, Wis. Stats. If the arbitrator’s decision does not set forth any discipline which is deemed by the arbitrator to be reasonable, the Chief may proceed with a determination to impose discipline less than termination of employment, which determination shall be subject again to the Grievance Procedure set forth in the labor agreement.

In any grievance of a disciplinary matter under the terms of this article, the standard to be applied by the arbitrator shall be whether or not there is cause for the discipline imposed under II, A., or cause for the determination of the Chief to file charges under II, B., given all of the facts and circumstance constituting the grounds for the imposition of discipline or the determination to file charges.

Cause shall be determined by applying the following criteria:

a) Was the employee given advance notice of the possible or probable disciplinary consequences of employee’s conduct; or was the conduct for which discipline is proposed to be imposed of such a nature that the employee knew or should have known that it was improper?

b) Was the conduct upon which discipline is to be imposed reasonably related to the effective and efficient operation of the Police Department?

c) Prior to determining to impose discipline, did the Chief, or his designee, make an effort to investigate the facts relating to the conduct for which discipline is proposed?

d) Was the Chief’s, or his designee’s, investigation conducted fairly and objectively?

e) Did such investigation produce sufficient evidence or proof that the employee was guilty of the conduct for which discipline is proposed?

f) Has the Chief, or his designee, applied a disciplinary penalty without discrimination?

g) Was the degree of discipline administered in the particular case reasonably related to the seriousness of the employee’s proven offense and the employee’s record of service with the Police Department?

In the event that a disciplinary matter is not grieved under the terms and conditions of the Grievance Procedure in the labor contract, or the above described written election and waiver is not filed, the City and the Chief may proceed in the matter of discipline of the officer in question as permitted by law, and the officer in question shall have no recourse to the Grievance Procedure in the labor agreement.

It is intended by the parties that in the event a grievance is filed pursuant to the Grievance Procedure of this Labor Agreement, and the above described election and waiver are filed with the City, the Grievance Procedure in the Labor Agreement shall be the sole and exclusive remedy of the City, the Chief, the Association, and the officer in question, and that no other discipline may be meted out to any officer based upon the subject matter of the grievance in question.

Discipline of an officer shall only be done according to the terms and conditions of this contract; however, the Chief shall have the right to suspend any officer with pay pending the outcome of any grievance filed pursuant to this agreement, or under Section 62.13, Wis. Stats.

The bargaining unit may appoint representatives of the bargaining unit and shall inform the City of the names of the individuals so appointed and of any change thereafter made in such appointments. The City shall allow the representatives the necessary time to process grievances during the course of the duty day.

. . . “

1994-95 AGREEMENT

“. . .

ARTICLE 3

GRIEVANCE PROCEDURES AND DISCIPLINARY PROCEEDINGS

. . .

3.06 STEPS AND PROCEDURE.

. . .

3.07 ARBITRATION PROCEDURE.

(1) ACCESS TO RECORDS. The employee or his/her bargaining unit shall have access to the City’s investigative file and all other pertinent documents or information once a disciplinary action has been meted out, but no sooner than three (3) days after such discipline has been meted out. Access to the employee’s personnel file shall be subject to the restrictions of Section 103.13(3), Wis. Stats. Nothing in this paragraph shall prohibit or restrict the City from taking a statement of the employee as part of an investigation to determine whether the employee should be disciplined.

(3) DEPOSITIONS.

(a) Once a witness has been identified pursuant to the procedures set forth above, that witness may be deposed.

3.10 DISCIPLINARY PROCEEDINGS. (1) All Discipline Except Termination.

(a) The Chief may discipline an employee short of termination for just cause. In the event of such discipline, the employee or the Union may grieve the discipline under the grievance procedure set forth above in this article, unless the employee exercises the rights available to the employee under Section 62.13 Wis. Stats. In the event the employee exercises said Section 62.13 rights, those rights shall be the employee’s sole remedy and the discipline shall not be grievable. The Chief shall file charges with the Board only if the officer wishes to proceed under Section 62.13.

(b) If the Chief determines that discipline short of termination of employment is justified as to any officer or officers, it shall advise the officer in question of the determination and the basis for the determination. Upon receipt of written notification of discipline short of termination of employment, the involved officer in question may grieve the determination of the Chief under the grievance procedure in Section 3.01 of this Agreement, but only if the officer files, before or at the time of the filing of the grievance under Section 3.01, a written election and waiver with the City stating:

1. That the officer is electing to proceed under the terms of the grievance procedure in the labor agreement;

2. That the grievance procedure in the labor agreement shall be the officer’s only remedy as to the grievance in question;

3. That the officer is aware of the rights the officer may have to proceed under Section 62.13 (5) (c) Wis. Stats. If the discipline is a suspension, but chooses not to proceed under the procedure of Section 62.13 (5) (c) Wis. Stats. and that the officer waives any and all rights to proceed under said Section 62.13

(5) (c) Wis. Stats.

(2) Filing of Charges to Terminate Employment.

(a) The Chief may determine to file charges with the Board of Police and Fire Commissioners pursuant to Section 62.13 (5) Wis. Stats. only in those instances where he determines there is just cause for termination of employment. That determination shall be grievable under the procedure set forth in Section 3.01 of this article. The Chief may not file charges with the Police and Fire Commission if a grievance has been filed until after the grievance has been determined/decided. The officer shall be notified of such determination and the basis for the determination, and that the Chief intends to file charges with the Police and Fire Commission pursuant to Section 62.13 Wis. Stats. seeking such determination at least fifteen (15) days prior to the filing of charges to permit the filing of a grievance.

(b) If the officer does not file a grievance or if the Chief’s determination is found to be reasonable and for cause by the Personnel Committee at step 3 of the grievance procedure, then the Chief shall have the right to file charges with the Police and Fire Commission under Section 62.13 Wis. Stats., and seek termination of employment of the officer in question. The employee’s sole recourse from the decision of the Board of Police and Fire Commissioners shall be in accordance with the appeal procedures provided in Section 62.13 Wis. Stats. The Chief’s determination to file charges may be amended at any step of the grievance procedure to another form of discipline including suspension.

(c) The Board of Police and Fire Commissioners will be counseled at the termination hearing by an independent Brown County attorney. If the Board finds that the Chief’s decision to terminate was reasonable and for cause but, in a written opinion, the attorney disagrees, then the officer in question shall remain on suspension with pay until the legal appeals proceedings are exhausted. If such review is no requested or if the attorney agrees with the Board, then the officer shall be terminated immediately following the Board’s action.

(3) Determination of Cause. In any grievance of a disciplinary matter under the terms of this article, the standard to be applied by management and the applicable bodies shall be whether or not there is cause for the discipline imposed under Section 3.10 (1) or cause for the determination of the Chief to file charges under 3.10 (2), given all of the facts and circumstance constituting the grounds for the imposition of discipline or the determination to file charges. Cause shall be determined by applying the following criteria:

(a) Was the employee given advance notice of the possible or probable disciplinary consequences of employee’s conduct or was the conduct for which discipline is proposed to be imposed of such a nature that the employee knew or should have known that it was improper?

(b) Was the conduct upon which discipline is to be imposed reasonably related to the effective and efficient operation of the Police Department?

(c) Prior to determining to impose discipline, did the Chief, or his designee, make an effort to investigate the facts relating to the conduct for which discipline is proposed?

(d) Was the Chief’s, or his designee’s, investigation conducted fairly and objectively?

(e) Did such investigation produce sufficient evidence or proof that the employee was guilty of the conduct for which discipline is proposed?

(f) Has the Chief, or his designee, applied a disciplinary penalty without discrimination?

(g) Was the degree of discipline administered in the particular case reasonably related to the seriousness of the employee’s proven offense and the employee’s record of service with the Police Department?

(4) Effect of No Grievance Filed. In the event that a disciplinary matter is not grieved under the terms and conditions of the grievance procedure in the labor

contract, or the above-described written election and waiver is not filed, the City and the Chief may proceed in the matter of discipline of the officer in question as permitted by law, and the officer in question shall have no recourse to the grievance procedure in the labor agreement.

(5) Remedy. It is intended by the parties that in the event a grievance is filed pursuant to the grievance procedure of this labor agreement and the above-described election and waiver are filed with the City, the grievance procedure in the labor agreement shall be the sole and exclusive remedy of the City, the Chief, the Association, and the officer in question, and that no other discipline may be meted out to any officer based upon the subject matter of the grievance in question.

(6) Limitation and Right. Discipline of an officer shall only be done according to the terms and conditions of this contract. However, the Chief shall have the right to suspend any officer with pay pending the outcome of any grievance filed pursuant to this agreement or under Section 62.13, Wis. Stats.

3.11 REPRESENTATIVES. The Bargaining Unit may appoint representatives of the bargaining unit and shall inform the City of the names of the individuals so appointed and of any change thereafter made in such appointments. The City shall allow the representatives the necessary time to process grievances during the course of the duty day.

. . .

ARTICLE 26

DISCIPLINE

26.01 RULES AND REGULATIONS. For disciplinary purposes, administrative or otherwise, the substantive rules and regulations for the conduct of members of the Police Department shall be as set forth in “City of Green Bay Police Department Rules and Regulations” (1961), and such may be amended from time to time by the City of Green Bay after negotiations with the Bargaining Unit. In the event such rules and regulations conflict with the ordinances of the City of Green Bay, laws of the State of Wisconsin or United States, or this agreement, said ordinances, laws or agreement shall prevail.

26.02 OFF-DUTY CONDUCT. Off-duty action or inaction shall not be considered as grounds for discipline unless the conduct in question:

(1) Constitutes a conviction of any local ordinance, quasi criminal or criminal law; or

(2) Is done under or pursuant to the officer’s use of authority or powers of a sworn Green Bay Police Officer, or under the color of the officers articulated use of the same; or

(3) Is in violation of any rules and regulations governing off-duty conduct existing in the Green Bay Police Department Policy and Procedure Manual. Excepting that Section I Chapter 2 Paragraph D of the existing Policies and Procedures Manual will be deleted.

26.03 INTERNAL INVESTIGATION. Internal investigations conducted by the Green Bay Police Department shall be subject to the following rules:

(2) When an officer under suspicion is questioned, that officer shall be first advised of the factual basis of the suspicion and advised as to what law, rule or regulation the officer is suspected of breaking. The officer being investigated shall be provided a copy of pertinent writings whenever possible. Also, the officer shall be given the name of the complainant except when the complainant is an employee of the Police Department or has requested anonymity.

. . . .”

RELEVANT STATUTES

”. . .

62.13 Police and Fire Departments

. . .

(5) Disciplinary actions against subordinates. (a) A subordinate may be suspended as hereinafter provided as a penalty. The subordinate may also be suspended by the commission pending the disposition of charges filed against the subordinate.

(b) Charges may be filed against a subordinate by the chief, by a member of the board, by the board as a body, or by any aggrieved person. Such charges shall be in writing and shall be filed with the president of the board. Pending disposition of such charges, the board or chief may suspend such subordinate.

(c) A subordinate may be suspended for just cause, as described in par. (em), by the chief or the board as a penalty. The chief shall file a report of such suspension with the commission immediately upon issuing the suspension. No hearing on such suspension shall be held unless requested by the suspended subordinate. If the subordinate suspended by the chief requests a hearing before the board, the chief shall be required to file charges with the board upon which such suspension was based.

(d) Following the filing of charges in any case, a copy thereof shall be served upon the person charged. The board shall set date for hearing not less than 10 days nor more than 30 days following service of charges. The hearing on the charges shall be public, and both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses by subpoenas which shall be issued by the president of the board on request and be served as are subpoenas under ch. 885.

(e) If the board determines that the charges are not sustained, the accused, if suspended, shall be immediately reinstated and all lost pay restored. If the board determines that the charges are sustained, the accused, by order of the board, may be suspended or reduced in rank, or suspended and reduced in rank, or removed, as the good of the service may require.

(em) No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board under par. (e), based on charges filed by the board, members of the board, an aggrieved person or the chief under par. (b), unless the board determines whether there is just cause, as described in this paragraph, to sustain the charges. In making its determination, the board shall apply the following standards, to the extent applicable:

1. Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct.

2. Whether the rule or order that the subordinate allegedly violated is reasonable.

3. Whether the chief, before filing the charge against the subordinate, made a reasonable effort to discover whether the subordinate did in fact violate a rule or order.

4. Whether the effort described under subd. 3 was fair and objective.

5. Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate.

6. Whether the chief is applying the rule or order fairly and without discrimination against the subordinate.

7. Whether the proposed discipline reasonably relates to the seriousness of the alleged violation and to the subordinate's record of service with the chief's department.

(f) Findings and determinations hereunder and orders of suspension, reduction, suspension and reduction, or removal, shall be in writing and, if they follow a hearing, shall be filed within 3 days thereof with the secretary of the board.

(g) Further rules for the administration of this subsection may be made by the board.

(h) No person shall be deprived of compensation while suspended pending disposition of charges.

(i) Any person suspended, reduced, suspended and reduced, or removed by the board may appeal from the order of the board to the circuit court by serving written notice of the appeal on the secretary of the board within 10 days after the order is filed. Within 5 days after receiving written notice of the appeal, the board shall certify to the clerk of the circuit court the record of the proceedings, including all documents, testimony and minutes. The action shall then be at issue and shall have precedence over any other cause of a different nature pending in the court, which shall always be open to the trial thereof. The court shall upon application of the accused or of the board fix a date of trial, which shall not be later than 15 days after such application except by agreement. The trial shall be by the court and upon the return of the board, except that the court may require further return or the taking and return of further evidence by the board. The question to be determined by the court shall be: Upon the evidence is there just cause, as described under par. (em), to sustain the charges against the accused? No costs shall be allowed either party and the clerk's fees shall be paid by the city. If the order of the board is reversed, the accused shall be forthwith reinstated and entitled to pay as though in continuous service. If the order of the board is sustained it shall be final and conclusive.

(j) The provisions of pars. (a)