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Title: City of Henderson, Nevada and Henderson Police Officers Association
Date: July 2, 2007
Arbitrator: Allen Pool
Citation: 2007 NAC 127

 

Federal Mediation and Conciliation Service
Case No. FMCS Case # 071114-51285-A

C. ALLEN POOL, Arbitrator
Arbitrator's Case No. 3-27-07

IN ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES

Henderson Police Officers Association

                            and

City of Henderson, Nevada

Grievance:        Officer Shannon Delugo  
                       
Disciplinary Suspension

 

ARBITRATOR'S

OPINION AND AWARD

July 2, 2007

 


 

           

           This Arbitration arose pursuant to Agreement between the Henderson Police Officers Association, hereinafter referred to as the “Union, and the Henderson Police Department, hereinafter referred to as the “City”, under which C. ALLEN POOL, through procedures of Federal Mediation and Conciliation Services, was selected by the parties to serve as the Arbitrator.  The Parties stipulated that the matter was properly before the Arbitrator and that his decision shall be final and binding.

            The hearing was held in Henderson, Nevada on March 27, 2007 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and argument.  The witnesses were duly sworn and a written transcript was made of the hearing.  Written closing arguments were timely submitted to and received by the Arbitrator on May 24, 2007 at which time the record was closed.

APPEARANCES:

For the Union: For the Employer:
Richard P. McCann, J.D. 
Labor Representative 
Shook & Stone, Chtd. 
710 South Fourth Street 
Las Vegas, Nevada 89101 
702.395.2220 


                                                                       
Scott E. Ortiz, Esq.
Williams, Porter, Day & Neville, P.C.
159 N. Wolcott, Suite 400
P.O. Box 10700
Casper, Wyoming 82602

307.265.0700



STIPULATED ISSUES

            Did the City have just cause to give the Grievant, Officer Shannon Delugo, a ten-hour suspension?  If not, what shall an appropriate remedy?

 

RELEVANT PROVISION OF THE AGREEMENT

Article 29. Section 1, Step 8 Grievance Procedure

 

            The Arbitrator’s decision shall be final and binding, and the non-prevailing party shall pay the fee and related expenses of the arbitrator.  The parties shall bear their own expenses for attorneys, court reporters and other related arbitration expenses.

 

BACKGROUND

            The Grievant is a twelve-year plus veteran police officer with the City.  During her years of service she has performed a variety of duties, i.e. patrol officer, D.A.R.E. officer, administrative duties, etc.  The event that led to the disciplinary suspension occurred on the morning of April 26, 2006.  The Grievant, to complete some paper work, arrived early at about 5:30 a.m. for her shift that was to begin at 6:00 a.m.  As usual, in preparation for her shift it was necessary for her to load the requisite equipment into her patrol vehicle, a Chevy Tahoe. 

            The last item she proceeded to load into the vehicle was her assigned AR-15 assault rife.  She removed the rifle, still in its case, from her locker where it had been secured at the completion of her last shift.  She removed the rifle from its case and carried it, with both hands on the weapon, to her vehicle.  With the door open, she leaned over the front seat inside the vehicle on the driver’s side to place the weapon in the “gun rack” located on the right-hand side of and next to the driver’s seat.  Before placing the rifle in the gun rack and while leaning over the front seat, the Grievant attempted to double check the weapon to ensure a round was not in the chamber. During this operation, she lost her balanced and slipped, her finger touched the trigger, and a round was accidentally discharged from the rifle.  The muzzle was about a foot in distance from her head and shoulders.  In addition, the safety selection had to have been on “fire”.  If it had been on “safe”, the weapon would not have fired when her finger touched the trigger (Tr. pp.155-160).   The round went through the air-conditioning unit in the overhead, through the roof of the vehicle, and through the ‘Sally Port’ under which the vehicle was parked.

            The Grievant immediately reported the accident to the supervisor still on duty from the graveyard shift, Sgt. Williams.  Sgt. Williams reported the incident and an investigation immediately followed that included a search for the spent round in the immediate are and the residential area about 50 yards away.  The round was never found.  The rifle was sent to the Range Officer where it was checked and was found to be a fully functioning rifle. 

            At the conclusion of the investigation, the report was sent to Deputy Chief Chambers for an analysis of the facts and recommendations.  Deputy Chief Chambers’ findings and recommendations included violations of the following: 1) DM-0303.03 Code of Conduct, Department Property, & Conduct Unbecoming; 2) DM-0704.04 Police Rifles – Deployment Procedures; 3) DM-0704.06, Police Rifles – Duty Ready; and (4) DM-0999, Misconduct – Neglect of Duties (Jt-2).[1]  Deputy Chief Chambers recommended that the Grievant receive remedial firearms training, be given a 10-hour suspension, and pay for damages to the vehicle.

            On May 23, 2006, the Grievant was served with a Notice of a Pre-Disciplinary Hearing scheduled for June 8, 2006 to be chaired by Acting Police Chief Richard Perkins.  The Grievant was represented at the hearing by the Union’s Labor Representative, Richard McCann.  Following the hearing, Chief Perkins made the determination not to require the Grievant to pay damages to the vehicle.  He had found that other officers that had caused damages to city property had not been required to pay damages.  The record did not specifically show it but it was assumed that the Grievant was required to participate in remedial firearms training. 

            Chief Perkins agreed with the recommendation that the Grievant be given a 10-hour suspension in that the accidental discharge was very serious and the incident was her second violation of Departmental Policy DM-0704: Firearms, Police Rifles.   The first violation occurred in June of 2005.  The first violation however did not involve an accidental discharge of a firearm.  For a period of almost three days the Grievant did not realize her AR-15 assault rifle was missing and not in her possession. She had left it in the back of another officer’s vehicle she had borrowed when her vehicle, at the start of a shift, had a flat tire. For that violation of DM-0704, the Grievant received a Verbal Reprimand that was not grieved.  

            Chief Perkins forwarded his recommendation that the Grievant be given a 10-hour suspension to the City Manager.  The City Manager approved the 10-hour suspension.  A grievance was filed and was processed to this arbitration.

POSITION OF THE CITY

 

The City had just cause to discipline the Grievant.  An accidental discharge of a rifle is always a serious matter.  This was the Grievant’s second violation of the department’s policy relative to rifles, DM-0704.  The first violation occurred when the Grievant did not realize her assigned rifle was missing and was not in her custody for almost three days.  In instant case, the second violation of DM-0704 involved having a live round in the rifle’s chamber when there should not have been a round in the chamber. Fortunately, no one was injured.  If there had been an injury, the Grievant would have been discharged.  The Grievant failed to follow proper procedures with this rifle.  A check of the chamber was not made prior to storing the rifle at the end of her previous shift.  Nor was a check made upon removing the rifle from her locker in preparation for her shift on the morning of incident.  An officer does not have an accidental discharge in these circumstances. The ten hour suspension was warranted and the grievance should be denied.

POSITION OF THE GRIEVANT/UNION

            The City did not have just cause to issue the 10-hour suspension.  The accidental discharge was not a second offense.  It was a violation of a different subsection of the firearms policy, DM-0704.  A 10-hour suspension is the maximum penalty expressed in the negotiated Code of Conduct progressive discipline matrix.  Other officers had had accidental discharges but were given lesser penalties than ten hour suspensions.  The Grievant should have been given the minimum penalty set forth in the discipline matrix, a Letter of Reprimand.  Moreover, even if the offense is determined to be a second offense, the Grievant should have been issued a Written Reprimand, the minimum penalty and not a 10-hour suspension, the maximum penalty. The grievance should be sustained.

DISCUSSION

                The Grievant’s contention that the accidental discharge was not a second offense but a first offense was not supported by the evidence record.  Though the two offenses were technically violations of different “subsections”, they were both violations of the same Departmental Policy relative to the handling or mishandling of Firearms / Rifles DM-0704.  

            The negotiated Code of Conduct with the progressive discipline matrix serves as a general guide to how various types of misconduct will be classified and the specifies the minimum and maximum penalty for the various classes of misconduct (Jt-1 pp. 43-56).  The Code of Conduct is a general guide in that it does not address unique situations.  Implicit in the Code of Conduct is that the Police Chief, using the guidelines expressed in the Code of Conduct has the authority to use his/her discretion to determine the classification of the misconduct.  In addition, the progressive discipline matrix recognizes that the Police Chief has the authority to use his discretion in determining whether the offense warrants the minimum or maximum discipline for the misconduct. 

            The Grievant acknowledged that the accidental discharge of her rifle was an even more serious matter that the first offense of misplacing her rifle.  She testified that the accidental discharge was “a Class 2 Offense” but she did believe her action warranted the maximum penalty for a Class 2 Offense.  She contended that other officer had accidental discharges of their rifles and did receive the maximum penalty that goes with a Class 2 Offense (Tr. p. 162). 

            The evidence record did support the Grievant’s contention. The other officers that had accidental discharges were members of a SWAT involved in tactical operations.  In situations like that, they are expected, required to have a round in the chamber of their rifles.   In the Grievant’s situation, there was no justifiable reason for a round to be in the chamber of her rifle at the time of accidental discharge. 

            For the reasons discussed in the foregoing, it is the decision of the Arbitrator that the City had just cause to give the Grievant a ten-hour suspension.  The grievance is denied.

AWARD

 

            The Grievance is denied.  The City had just cause to give the Grievant, Officer Shannon DeLugo a ten-hour suspension.

 

 

Date: ________________________________           ______________________________

                                                                                    C. ALLEN POOL, Arbitrator

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