of Henderson, Nevada and Henderson
Police Officers Association
ARBITRATION PROCEEDINGS PURSUANT TO
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.
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.
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
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).
Deputy Chief Chambers recommended that the Grievant receive remedial
firearms training, be given a 10-hour suspension, and pay for damages to the
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.
OF THE CITY
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.
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.
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.
Grievance is denied. The City had
just cause to give the Grievant, Officer Shannon DeLugo a ten-hour suspension.
C. ALLEN POOL, Arbitrator
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028