1991 NAC 102 Marion County Sheriff and Marion County Deputy Sheriff's Association

Title: Marion County Sheriff and Marion County Deputy Sheriff's Association
Date: December 8, 1991
Arbitrator: Luella E. Nelson
Citation: 1991 NAC 102

In the Matter of a Controversy

between

MARION COUNTY DEPUTY SHERIFFS' ASSOCIATION,

and

MARION COUNTY SHERIFF.

RE: Discipline of James May and Terry Sheets

ARBITRATOR'S

OPINION AND AWARD

This Arbitration arises pursuant to Agreement between MARION COUNTY DEPUTY SHERIFFS' ASSOCIATION ("Association"), and MARION COUNTY SHERIFF, ("Sheriff"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

Hearing was held on October 8, 1991, in Salem, Oregon. The parties were afforded full opportunity for the examination and cross-examination of witnesses, the introduction of relevant exhibits, and for argument. Both parties filed post-hearing briefs on or about November 4, 1991.

John E. Hoag, Esquire, Aitchison, Hoag, Vick & Tarantino, 209 West Fifth, Eugene, Oregon 97401.

Robert Cannon, Esquire, Legal Counsel, Marion County, Marion County Courthouse, 100 High Street NE, Salem, Oregon 97301-3670.

Was there just cause for the discipline of James May and Terry Sheets; if not, what shall be the remedy?

Section 1. Disciplinary action may be imposed upon an employee only for just cause using the principles of progressive discipline.

(c) Suspension Without Pay: Suspensions are a commonly used form of punishment after an oral and written reprimand. However, it can be used sooner based upon the severity of the misconduct.....

After original issuance, citations will be voided only when circumstances reveal that the citation was issued in error.

1. After original issuance and before voiding a citation, the shift commander will be advided [sic] and informed of the reason for voiding.

a. If the shift commander concurs, the available copies of the citation will be marked VOID across the face.

b. A brief explanation will be noted on the back, and the citation turned in to the division commander.

c. If both the shift commander and the division commander concur, they should initial the back of the form.

2. Persons to whom citations were issued and then voided will be advised of the reason and if appropriate, reissued a correct citation.

3. If a citation has been forwarded to the court and has been issued in error, a request for dismissal will be made in writing, explaining the reason, through the division commander.

4. Each citation and each copy of the citation including the defendant's copy must be accounted for prior to the voiding of a citation.

Sec. 3 CAUSE FOR DISCIPLINARY ACTION: Any action which reflects discredit upon conduct as an employee ... shall be considered good cause for disciplinary action. Improper action by an employee in an official capacity tending to bring the county into discredit, or which tends to affect the employee's ability to perform or any improper use of the employee's position as an employee for personal advantage shall also be judged good cause. In addition, good cause includes but is not limited to the following:

I will never act officiously or permit personal feelings, prejudices, animosities, or friendships to influence my decisions. Without compromise and with relentlessness, I will uphold the laws affecting the duties of my profession courteously and appropriately without fear or favor, malice or ill will, never employing unnecessary force or violence, and never accepting gratuities.

ORS 153.120 Citation requirements; delivery of summons to person cited; delivery of other parts of citation. ...

This case involves the discipline of two Marion County Sheriff's Deputies, James May and Terry Sheets ("Grievants"), over the voiding of a traffic ticket originally issued by May to a third Sheriff's employee, Sergeant Kathy Fisher. The facts are not in dispute.

Fisher was on her way to work at the jail when May stopped her for speeding. Fisher expressed great displeasure at receiving the ticket. At the time, May was unaware of Fisher's affiliation with the Sheriff's Office. Later that day, May reported to Sergeant Larry Feller that a citizen complaint might ensue over the incident. Feller recognized Fisher's name, informed May that she was a fellow officer, and reassured him that it was all right to ticket fellow officers. Feller placed the ticket in the report box to be taken to the downtown office for processing and routing into the court system. There was no discussion of whether the ticket should be voided or how that might be accomplished.

At the jail that day, Fisher told Sheets about the ticket and discussed a recent incident in which May issued only a verbal warning to a male Sergeant. Fisher asked if anything could be done once a ticket was issued, and Sheets said he would check into it. Sheets met with May, asked whether May knew that Fisher was a Sergeant when he issued the ticket, and discussed the treatment afforded to the male Sergeant. May commented that he would not have issued the ticket if he had known that Fisher was a Sergeant. Sheets asked May, as a favor, to check and see if the ticket could be dismissed. The two agreed that if the ticket was downtown, May could do nothing, but if it was still in the report box it could be "unissued." May found the ticket still in the report box, removed it, and tore it up. He called Sheets and told him he believed Fisher had learned her lesson[1] and that she could destroy her copy of the ticket. Sheets retrieved Fisher's copy and tore it up.

Later that day, May discussed his treatment of Fisher's ticket with a fellow officer in the presence of a Sergeant Watts. Watts asked May to document his actions and notified Feller of what he had learned. That same day, Sheets discussed the incident with a Sergeant Taylor, with whom he discusses his work. He testified that Taylor told him he probably should not have done what he did, but did not cite a rule against it. May, Sheets, and Fisher prepared separate reports of their involvement in the ticket. At Feller's direction, May issued a substitute ticket to Fisher.

The Sheriff suspended Fisher for three days, Sheets for five days, and May for two days. The discipline issued to Fisher is not at issue here. May had been on the force less than a year and was still on probation at the time of the events in question; Sheets had 18 years' service.

General Order 4-51-285 has been in effect since February 1985. Gary Jones, who supervises the Records Section of the Sheriff's Office, testified that he has not seen tickets coming into his office marked "void." Feller testified that voided tickets stay within the Sheriff's Office rather than going to court. He does not automatically send every ticket to court, and he is unaware of any statute requiring all tickets to go to court. The only discipline administered for voiding a ticket was in 1972, under a predecessor policy. The officer involved in the 1972 incident was discharged for removing and destroying a ticket issued by another officer because he recognized the defendant's name as that of a friend.

James Radakavich testified by telephone from a U.S. Army base. He testified that he issued a ticket in the summer of 1989 while working as a Cadet for the Sheriff's Office. Lieutenant Larry Allen contacted him and brought him the ticket and a citizen complaint over the ticket. The two discussed whether the speed limit indicated on the ticket was correct. Radakavich offered to re-issue the ticket, but Allen said it was unnecessary and that he would take care of it. Radakavich was never called to go to court on the ticket.

Allen testified he contacted Radakavich over a complaint that he and another cadet had set up a speed trap. Allen concluded there was nothing wrong with the ticket, but the park involved was not one in which those cadets were to patrol. He denied bringing the ticket with him when he spoke to Radakavich or destroying it, and testified he had no intention of preventing the ticket from being processed. The file copy of the ticket in question cannot be located.

On another occasion, Allen contacted a cadet about a ticket issued for lack of proof of insurance. The cadet had told the citizen the ticket would be torn up if he came in with proof of insurance. Allen testified that he informed the citizen and the cadet that the Sheriff's Office did not tear up tickets. After verifying that the citizen had insurance, Allen submitted a memorandum to the Court Administrator requesting that "this citation not be processed through the court."

Deputy Sheriff Dennis Johnson testified he vaguely recalled that the Department had a policy regarding voiding tickets, but the policy has not been followed in practice. He has retrieved and destroyed tickets without going through the official procedure, and he has seen other officers do the same. He testified that Radakavich talked to him about the 1989 ticket in which Allen became involved, and he did not find Allen's actions surprising.

Shop Steward Larry Seeley testified that he was aware that the procedure for voiding tickets was to mark the ticket "void" and place it in the report box. That policy has been followed to varying degrees. He has sometimes thrown away tickets that were damaged or erroneous, and at other times has voided them, and he is aware that other officers have thrown out tickets. He testified that the Department has evidenced no great concern over what was done with tickets once they were no longer needed.

Sheets is familiar with General Order 4-51-285, but testified that Sheriff's Deputies generally did not follow it. In this regard, he noted there was no accountability for ticket books, he often received ticket books with missing tickets, and he often observed torn-up tickets in wastebaskets in the Sheriff's Office. He testified that, before this incident, his understanding was that once a ticket was downtown or in court, an officer who wished to void it would have to explain to the court why it was issued in error. Before a ticket went downtown, he believed an officer could void a ticket by destroying all copies. He testified that he has used this method of voiding tickets in the past where he concluded that the person had learned a lesson and would not repeat the offense. He was taught not to ticket fellow officers, as a professional courtesy.

May testified that he was unaware of General Order 4-51-285 or any rule prohibiting the voiding of tickets after issuance. He has never signed off on a copy of General Order 4-51-285 to indicate having read it. He has seen filled-out tickets in trash cans, some of which had been marked "void." He has seen other officers pull tickets out of the report box, but did not observe what they did with those tickets; he acknowledged that one reason to do so was to mark the location of the incident on the ticket. He believed he retained the discretion to void a ticket up to the point where it went downtown, if he felt the offender had learned a lesson and would not repeat the violation. At the police academy, he was trained in the procedure for filling out tickets and in traffic laws, but not in what to do if a ticket was issued in error. After police academy, he received training from three field training officers (FTO's). He testified that one FTO, Daniel Witt, told him it was not a good idea to cite fellow officers because he had to work with them. Another FTO, Mark Keagle, told him a ticket could be voided by tearing up all the copies.

Witt testified that he trained May in traffic stops. He testified that he generally instructed recruits that once a ticket was issued, it was issued, and that an officer could not void a mistaken ticket. In his experience, not all officers follow the procedure of routing all tickets through the court. He has seen voided tickets ripped up where, for example, the ticket was voided before service on the citizen and replaced by a corrected ticket. He may have informally discussed the inadvisability of issuing a ticket to fellow officers because of the need to work together.

Keagle testified that he trained May in filling out tickets. He testified that a ticket could be voided where it contained an error or where the officer reconsidered and decided a verbal warning would have been sufficient. His understanding of the procedure for voiding tickets was that the issuing officer was to retrieve the defendant's copy and shred or tear up all copies of the ticket. He has never had a sergeant sign a voided ticket or route it downtown. He testified that if he discussed a ticket with a sergeant and the sergeant approved the ticket and placed it in the box for routing downtown, he would not take the ticket out and tear it up. He was unfamiliar with General Order 4-51-285. He testified that paragraph 4 of that policy is not complied with, and there is no way to account for destroyed tickets since ticket books are not accounted for.

Deputy Sheriff Vincent Wan testified that he trained May in issuing tickets and discussed how they were processed, but did not discuss the procedure for voiding tickets. His understanding of the procedure for voiding tickets is consistent with General Order 4-51-285.

Feller testified that he did not doubt that May was unaware of the policy regarding voiding tickets, but he suspended May because he had violated the policy. He did not check with May's FTO's to determine whether May had received training in General Order 4-51-285. He testified that May was doing excellent work on probation.

In sustaining the discipline, Captain Ron Freshour found no facts to contradict the claim of ignorance of the policy. His written decision commented that the conduct violated the policy; it could be interpreted as a Class A Misdemeanor and would bring disgrace on the Sheriff and the Sheriff's Office if it became public; and the failure to set and enforce high standards for employees would invite outsiders to come in and "clean house."

The discipline imposed on May should be reduced from suspension without pay to a written reprimand. The discipline for Sheets was correct and should be sustained.

General Order 4-51-285 was not uniformly followed in the Sheriff's office, and May had no provable knowledge of this General Order. May was never told or trained on tearing up valid tickets. However, May claimed that he "thought" Fisher had learned her lesson, and he was influenced by Sheets in deciding to tear up the ticket. May's conduct was and is wrong, and lacks a great deal of common sense. It is reasonable to believe that if Fisher was a civilian violator, the ticket would not have been torn up.

All police officers are expected to act in the public interest, and their conduct shall not be a discredit in the performance of county functions. Tearing up a valid ticket, albeit for professional courtesy, is not acceptable or in the public interest, and is classic cronyism. The public would not understand this conduct. The public trust has been violated. May responded inappropriately and did not consider the impact of his actions on the Sheriff's Office, other officers, or the public in general. Officer discretion does not allow an officer to act blindly upon the request of a senior Deputy. May was on probation and was influenced by the request of a senior Deputy. He wanted to please and follow "accepted practice" of professional courtesy. In his attempt to please others, he violated County Personnel Rules and the Police Officer Code of Ethics.

Sheets asked another deputy to do "a favor" for an acquaintance, although he had no reason to believe the ticket was invalid or wrongly issued. It cannot be acceptable to destroy tickets for citizens or police officers. As an 18-year veteran, there should be no question in Sheets' mind that his request was inappropriate and a violation of County Personnel Rules and the Code of Conduct. Tickets which have been torn up or destroyed in the past were incorrectly filled out, invalid, or dismissed for a variety of lawful reasons. None involved personal friendship, professional courtesy, or personal gain. All of the examples involved arguably justifiable reasons for destroying the tickets.

It is admirable and consistent with Sheets' employment that he did not deny his conduct. The conduct is wrong and in violation of statute. Once the ticket is issued and the driver given the summons, the officer has no choice and no discretion; the ticket must be routed to court. Sheets knew better. This was a stupid, unthinking act and request of a younger officer. While the request was not motivated by evil intent, such conduct cannot be condoned. A written reprimand is not adequate discipline for the admitted conduct.

No discipline was warranted in this case. All discipline of May and Sheets should be removed from their personnel files. They should be restored the time for which they were suspended without pay and be made whole in every respect. The Arbitrator should retain jurisdiction over the remedy in this case.

Both Grievants freely admitted violating the policy. The Sheriff's investigators concluded that neither was aware of the policy. Principles of progressive discipline do not allow discipline for violation of a rule of which the employee is unaware. The investigation failed to inquire into possible justification for the employees' conduct. This was not such an obvious offense as to obviate the need for notice. Both voiding of tickets and giving professional courtesy to fellow officers were common practices.

The conduct did not violate state law or the Criminal Justice Code of Ethics. ORS 153.120 does not prohibit an officer from retrieving a summons issued in error, and past practice has been to retrieve such erroneous summonses rather than file the complaint in court. Even the Sheriff's own policy on voiding of tickets does not require filing the complaint with the court. Paragraph 3 of the policy shows that the Sheriff has a practice of not filing voided tickets with the court unless the Sheriff is unable to retrieve the ticket. In such a case, it is reasonable to send the erroneous ticket to the court, as the defendant may appear in response to the ticket. If the statute were interpreted as suggested by the Sheriff, then its own policy violates the statute. The Sheriff did not call a District Attorney to testify that Grievants' actions violated State law. No evidence exists that either was prosecuted for this conduct or that the Sheriff referred this case to the District Attorney's office. The Sheriff's attempt to imply that a violation of a criminal statute has occurred should be rejected. The Sheriff has failed to explain how the conduct in this case violated the Code of Ethics. Virtually all police officers give immunity to fellow officers, and no statute was violated in voiding the ticket. Many deputies were unaware of the policy regarding the voiding of tickets, and it was not enforced.

The Sheriff could reasonably put General Order 4-51-285 in place and require its employees to follow it. Every witness who testified regarding that policy acknowledged that it was not being followed. If the Sheriff wishes to adhere to that policy, it should put employees on notice of that fact. The Sheriff will then be able to enforce it in the future.

The investigation was not conducted fairly and objectively. Neither Grievant was interviewed to ascertain the reasons they did not adhere to the policy. The Department was more concerned with possible adverse publicity over the matter than it was with whether Grievants knowingly violated a policy. The Sheriff was aware of Grievants' lack of knowledge of their wrongdoing, and thus was aware that they were not guilty as charged.

The Sheriff has not applied its policy evenhandedly. The policy was not followed, and a number of witnesses, including a FTO, were unaware that the rule existed. Those who were vaguely aware of the rule did not feel that ripping up a ticket violated the rule.

The degree of discipline imposed was not reasonably related to the seriousness of the offense or the record of the employees. May was new and had received no training on the policy. No evidence exists that he has been otherwise disciplined or that his performance has been less than satisfactory. The Sheriff could have terminated this probationary employee, but chose not to do so. Given his record, there is no justification for any discipline of May. Sheets was an 18-year veteran and could be held to higher knowledge of rules and standards of the Sheriff under appropriate circumstances. However, it was undisputed that the tearing up of tickets and giving professional courtesy occurs regularly. His belief that the conduct did not violate any Sheriff's Office rule was the uncontradicted state of the evidence in this case. No evidence exists that he had ever been disciplined.

The Arbitrator's authority is limited to determining whether just cause existed for this discipline. Statutory interpretation is the province of the courts, and requires analysis of legislative history and prior decisions. The Arbitrator will not attempt to determine whether ORS 153.120 prohibited Grievants' conduct or whether the policy enunciated in General Order 4-51-285 is consistent with the requirements of that statute. Any determination as to whether Grievants' conduct violated public policy falls within the expertise of prosecutory and judicial authorities.

The Agreement requires that any discipline must be for just cause. Just cause requires, inter alia, notice of the standards of conduct in the workplace. If the particular employer has tolerated conduct which is generally disfavored in the industry, it is the actual standards of that workplace that must be applied, even if the "industry standard" might be considered a more desirable one. The distinguishing factors between permissible and impermissible conduct must be consistent and predictable to allow employees to conform their behavior to the rules. Before employees can be held to a new or newly-enforced standard of conduct, they must receive notice of the standard.

The Sheriff has a valid interest in avoiding any appearance of cronyism or suggestion that an officer may have "fixed" a ticket. To further this interest, the Sheriff reasonably could promulgate and enforce a uniform policy governing the voiding of tickets or the limits of "professional courtesy" for fellow officers.

General Order 4-51-285 recognizes that it is sometimes appropriate to void a ticket after issuance. The examples raised at the hearing demonstrate some of the valid reasons that may exist for voiding tickets beyond the narrow confines of that policy. Even in the absence of a specific policy, police officers know, or should know, that it is improper to void tickets for reasons unrelated to the proper performance of their duties. The determination of which reasons are related to the proper performance of their duties may itself depend on the policies and practices of the law enforcement agency.

The only written policy regarding the voiding of tickets is General Order 4-51-286, which specifies the voiding procedure when a ticket "was issued in error." Salutary though this policy may be on paper, it has not been applied in practice. Officers commonly void citizens' tickets for reasons other than "error," such as the officer's conclusion that a verbal warning would have been sufficient to deter a repeat of the violation. Officers also routinely void tickets by destroying them rather than routing them through the court system. Therefore, neither the decision to void Fisher's ticket nor the means used to do so was novel in this workplace.

The Sheriff recognizes that May had no notice of or training in General Order 4-51-285, and therefore that the penalty imposed on him was too severe. Unlike May, Sheets had notice of General Order 4-51-285, but he also knew that only some officers adhered to it. Sheets had no notice that the Sheriff intended to enforce the policy uniformly, and his suspension also cannot stand.

The voiding of the ticket did not evince cronyism beyond that implicit in professional courtesy. It is irrelevant whether officers should extend professional courtesy to one another, or whether the public would approve of such a practice. Desirable or not, the practice was permitted in this workplace, and May was trained to follow it. Fisher was aware that May had extended this courtesy to a male officer, and questioned his motives in denying it to her. Sheets, in turn, mentioned the discrepancy in treatment to May. A concern over evenhanded enforcement as between male and female officers was arguably a legitimate reason for voiding a ticket under the prevailing standards of conduct.

Sheets phrased his inquiry into the fate of Fisher's ticket in terms of doing him "a favor." This phrasing is somewhat ambiguous, but one conventionally used where the speaker seeks a common courtesy rather than a gratuity. The simple turn of a phrase is a slender thread upon which to base discipline, particularly where, as here, the words used are susceptible to either a proper or improper meaning. May had acquired further information about this particular traffic offender after issuing the ticket. In this context, the suggestion that he reconsider the ticket in light of that new information was at least arguably proper. Accordingly, the Sheriff has not established that Sheets requested or May granted a gratuity.

2. As a remedy, the Sheriff shall revoke the suspensions of James May and Terry Sheets, expunge all reference thereto from their personnel files, and make them whole for all losses resulting from their suspensions, including wages and benefits.

3. The Arbitrator retains jurisdiction over any dispute arising from the remedy portion of this Award.

[1] He testified that he concluded that Fisher had learned her lesson because she was bothered enough to contact Sheets, and he therefore had her attention. At the time of the stop, he had been unable to get a word in to explain the citation.