This Arbitration arises pursuant to Agreement between KLAMATH COUNTY PEACE OFFICERS' ASSOCIATION ("Association"), and KLAMATH COUNTY ("County"), 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 December 8, 1994, and January 5, 1995, in Klamath Falls, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties filed post-hearing briefs on or about February 10, 1995.

APPEARANCES:

            On behalf of the Association:

 

JOHN E. HOAG, Esquire, HOAG, GARRETTSON & GOLDBERG, 209 W. 5th, Eugene, Oregon 97401

 

            On behalf of the County:

 

DAVID A. ERNST, Esquire, BULLIVANT, HOUSER, BAILEY, PENDERGRASS & HOFFMAN, 300 Pioneer Tower, 888 S.W. Fifth Avenue, Portland, Oregon 97204‑2089

 

             ISSUE

 

                        Did the Sheriff's Department have just cause to discipline Deputy Davidson? If not, what is the appropriate remedy?

 

   RELEVANT SECTIONS OF AGREEMENT

ARTICLE 27 - GRIEVANCE PROCEDURE

                ...

                Section 27.4  Arbitration Expenses.  ... the cost of the arbitrator and the hearing room shall be borne by the losing party.  The question of who the "losing party" is shall be submitted to the arbitrator who rendered the decision in question.  The arbitrator's subsequent designation of the "losing party" shall be final and binding. ...

 ARTICLE 30 - DISCIPLINE AND DISCHARGE

                ...

                Section 30.2  Just Cause.  The Sheriff will not discipline an employee except for just cause.  The Sheriff will make all efforts to impose discipline in a manner which is not embarrassing to the employee before other employees or the public.

                ...

  RELEVANT SHERIFF'S POLICIES

                2.001        PUBLIC SERVICE

                                It is the principal responsibility of every member of this Department, to promptly, courteously, and effectively assist the public. ... Prompt assistance shall be given to all requests for service, no matter how received, unless directed otherwise.

                2.002       COOPERATION

                                Members shall cooperate with all members of this Department and with members of other public agencies. ...

                2.005        CONDUCT

                                No member of this Department shall act in such a manner as to bring discredit upon himself or this Department.

                2.006       OBEY ORDERS

                                ...

                                Members shall faithfully and promptly obey the lawful orders of a Superior Officer. ....

                2.018       TAKING ACTION IN EMERGENCY

                                ...

                                Members shall be ready at all times to preserve the peace, prevent crime, pursue and arrest criminals, and to engage in enforcement action when called upon to do so.

                3.019       SAFETY

                                Members shall perform their duties in a safe manner and shall utilize safety equipment provided.  Members shall report any unsafe equipment, conditions, facilities or practices to their Supervisor.  Members shall correct unsafe situations when it is within their abilities to do so.

                3.021       INCOMPETENCY

                                ...

                                Incompetency may be demonstrated by ... an unwillingness or inability to perform assigned tasks; a failure to conform to work standards established for the member's rank or position; failure to take appropriate action on the occasion of a crime; ...

 

            FACTS

            Grievant has worked for the Klamath County Sheriff's Department ("Department") since 1983.  Until the suspension at issue, he had no record of discipline, and his evaluations were positive.

            On June 7, 1994, the Department disciplined Grievant for alleged violations of Sheriff's Policies 2.001, 2.005, 2.006, 2.018, 3.019, and 3.021.  It suspended him for five days, with three days of the discipline to be suspended on the condition that he had no violations over the next twelve months.  The Department based the discipline on Grievant's responses over the radio during an emergency call on April 19, 1994.

THE APRIL 19 INCIDENT

            Because of a shortage of supervisors, Jail Sergeant Gary Schrieber[1] was in charge of both the jail and patrol for the evening shift on April 19.  Shortly after 9 p.m., Grievant was having coffee with Resident Deputy[2] Charles "Sparkie" Mrkvicka when the dispatcher ("911") notified him of a "man with a gun" call at a trailer park on the edge of town, about five miles away.

            911 dispatches both city and county police; Oregon State Police ("OSP") are able to monitor 911 traffic.  All 911 traffic is taped.  A copy of the tape, and a transcript thereof, are in evidence.  Relevant parts of the tape,[3] in the order in which they occurred,[4] are excerpted below.  Grievant is "31;" Mrkvicka is "36."  Sam3 is Schrieber.  "3L2" is a City of Klamath Falls police officer.  "D-1" is a narcotics officer for the City of Klamath Falls.  "5652 unit 2" is an OSP narcotics officer.

            [911 takes a call reporting a man is waving and shooting a gun at people at a trailer park owned by the caller's father; the caller reports her father is en route to the trailer park and is not aware of the situation.  911 contacts Grievant and Mrkvicka.]

 

            911:      31, 36 man with a gun.

            31:        [unintelligible]

0:00     911:      31, 36 respond to Klamath View Trailer Park, 1663 Greensprings, around space number 23.  We have a report of a male subject who is apparently armed, apparently he's fired several shots at different trailers and now he's waving the gun around and we don't have any description of him at this point.

            31:       Copy, now (unintelligible) contact supervisor on this.  This meets the criteria that I've been advised not to respond to.

            911:     10-4. 

            3L2:     3L2. 

            911:     Yes. 

            3L2:     Available for back-up, put the other call on the shelf if he requests it. 

            911:     10-4.  I have to get clearance from a supervisor to roll them.  I'll let you know. 

            3L2:     10-4. 

            Sam3:  Schrieber. 

            911:     Hey there. 

            Sam3:  Hi. 

            911:    I just went to dispatch Davidson and Mrkvicka to a man with a gun call at Klamath View Trailer Park, shots had been fired and um, Davidson said that he--I have to get permission from a supervisor to roll him because of the criteria on this-- 

            31:      31.

            911:    31--

            Sam3: --(unintelligible) 

            911:   Yeah, just a minute--

            31:     Do we have trailers that have actually been struck?

            911:     It just says he's fired at several, it hasn't said if he's actually struck any or not.  Apparently the owner of the trailer park is on his way, a Mr. Eddy, but he's unaware that this guy is out there armed. 

            31:     Copy.

            911:  He says that this is apparently the criteria of the kind of calls they're not supposed to respond to.  Is there something new that I don't know about? 

            Sam3: Well, if there is, I don't know anything about it.

            911:    Well, he said I have to call and get permission to roll him.

            Sam3: Where is Klamath View Trailer Park?

            911:    It's at 1663 Greensprings, that one that sits right there on that sharp corner on Greensprings just before you get to the disposal company.

            Sam3: And, shots fired?

            911:   Yeah, apparently so.

            Sam3: Well, go ahead and roll him, and then tell him to get in touch with me 'cause I don't know what he's talking about.

            911:     I didn't--don't have any idea neither, but-- 

            Sam3: But, you know, of course, that's not unusual around here.

            911:   That's true.  Okay, I'll roll him. 

            Sam3:  All right. 

            911:    Okay, thanks. 

            Sam3: Roll Sparkie as a backup.

            911:   Okay.

            Sam3: All right. 

            911:   Okay, 'bye.

3:04     911:    31 and 36, I have permission from Sam3 to roll you.

            36:      We copy it.  En route. 

            911:     31 and 36, also David 2 and Detective Haskins from the State are on their way to that location.  For your information, owner of the park, Daniel Eddy, apparently is en route but he's not aware that there's a guy out there armed.

            31:       (unintelligible) 

            36:       We're 10-8 on course there already.  Will you 10-21 the reportee again and find out if the shots are continuing. 

            911:     Hey, she's not on scene, she's in another location.  Somebody called her from the trailer park and she called us.

            36:       Copy.

            31:       31. 

            911:     31.

            31:      Which supervisor do you advise you contacted? 

            911:    Sam3, Schrieber.

            31:      (unintelligible) 

            911:     31, he's not familiar with this protocol on calls.  He said to go ahead and roll  you, but he said he'd talk to you later about it.  He said but it's not unusual that something wouldn't have made it to him yet.

4:34     31:        --a patrol supervisor be informed and because of the fact that I do not have the proper equipment to deal with such a deal.  I'll go ahead and be en route for a perimeter. 

            911:     10-4.  I'll call him back and tell him that.

            Sam3:  Schrieber. 

            911:    Apparently this is due to Davidson not having the proper equipment to deal with such a call.

            Sam3: I have no idea what he's talking about-- 

            911:   Anyway, I told him to contact you, but he's going to go out there for the perimeter and I'm throwing my arms up.  I don't know what to do 'cause I--

            Sam3: Well, they didn't pass anything on to me, which isn't unusual, so--

            911:  Okay, I'll let you and Davidson--

            Sam3: Yeah-- 

            911:  I told him to contact you, but I thought I'd let you know-- 

            Sam3: When he clears from out there, we can (unintelligible)

            911:   Okay, let me talk to you later then.

            36:     --a right when we get in there, is that right?

            31:     You know, I'm not sure.  The "E" numbers on that thing are laid out real weird and a lot of them aren't even in sequence.

            36:     10-4, copy 10. 

            D-1:   31 from D-1.

            31:     31.

            D-1:   5652 Unit 2 and I are right behind you.  If you want us to sit on the perimeter somewhere.

            31:     Basically, that's all I'm going to do.  I don't have any of the equipment to deal with this, and I've been instructed not to go into a situation like this.

            [Traffic among responding officers and between units 31 and 36 and 911 regarding contacts at the scene.]

            Mrkvicka recalled saying when he got into his vehicle, "I am 10-8," meaning he was en route.  He also recalled Grievant saying, "We are en route," even before that.  The portion of the tape that can be deciphered does not contain those comments at the outset of the call.

THE CHARGES AGAINST GRIEVANT

            Captain Roger Pitts received a report of the incident at home on the evening of April 19.  He began investigating the incident on April 20.  His investigative report and recommendation of discipline, dated May 17, reached the following conclusions:

            Deputy Davidson's actions result in the following:

            2.001 Public service states in part "It is the principal responsibility of every member of this department to promptly...assist the public.  Prompt assistance shall be given to all requests for service..." (underline added)

            2.005 Conduct states in part "no member of this department shall act in such a manner as to bring discredit upon himself or the department."

            Deputy Davidson taking time to use the restroom while citizen's were potentially being shot at is a violation of 2.005.  From the time of the call being dispatched to Deputy Davidson advising dispatch that he was en route was four and one half minutes.

            2.006 Obey Orders states that "...members shall faithfully and promptly obey the lawful orders of a superior officer."

            Deputy Davidson obeyed the order of Sergeant Schrieber but questioned the order to the extent to request dispatch to call another supervisor.

            2.018 Taking Action In An Emergency states in part that "members shall be ready at all times to preserve the peace, prevent crime, pursue and arrest criminals, and to engage in enforcement action when called upon to do so."

            3.019 Safety states in part "members...shall utilize safety equipment provided.  Members shall report any unsafe equipment, conditions, facilities, or practices to their supervisor.  Members shall correct unsafe situations when it is within their abilities to do so."

            Deputy Davidson was not ready to preserve the peace, as he was confused as to what calls he was to respond to, had been confused for a length of time and had not requested clarification.  He was not ready to preserve the peace as he did not even have a long gun with him which was readily available.  He did nothing to correct or report any safety concerns that he voiced in his arguments.

            2.019 Required to Face Danger - Deputy Davidson leaves some question as to his will­ingness to face danger but did respond to the call.

            3.021 Incompetency states in part that it "may be demonstrated by an unwillingness or inability to perform assigned tasks...A failure to conform to work standards established for the members rank or position."

            Deputy Davidson states an inability to perform an assigned task giving the reason of not being properly equipped.  He chose not to be properly equipped.  He failed to conform to work standards in that his number one priority is to protect persons.

            Pitts testified he found no violation of Policy Section 2.019, and the Department therefore does not charge Grievant with unwillingness to face danger.  He later concluded he could not sub­stan­tiate that Grievant stopped to use the restroom before responding to the call.  The Department therefore does not charge Grievant with violating Policy Sections 2.001 and 2.005 in that respect.  Pitts testified Grievant nonetheless violated those sections because he created confusion for the dispatcher and other officers regarding whether he would respond to the call.  Pitts viewed the dis­patcher as part of the "public" to which Section 2.001 refers.  He concluded that Grievant's conduct also violated Section 2.005 in that it brought discredit to himself and the Department in the eyes of other police agencies who overheard the exchange.  Pitts testified that Grievant's length of service made his offense more serious, because the conduct should not have occurred with a veteran officer.  Sheriff Carl Burkhart testified he reviewed Pitts' report and concurred in his findings.

THE ALLEGED SHERIFF'S DIRECTIVE

            The Department has always provided shotguns as a second weapon to supplement deputies' handguns.  At one time, it also made available .223 caliber long guns called Mini-14's, which are sim­i­lar to an M-16.  Rounds from Mini-14's can shoot through structures.  The Department became concerned about possible harm to bystanders if the Mini-14's were used in town.  It also experienced frequent damage to the magazines and increasing ammunition expenses for this weapon.  Because of these problems, in late 1993 or early 1994, it replaced the Mini-14's with Marlin .45 caliber rifles.  Thereafter, only resident deputies were permitted to carry their personally-owned Mini-14's on duty.

            On February 4, 1994, Grievant and Deputy Patrick Stanton approached Burkhart in the break room.  Also present were Deputy Thomas Johnson and Clerk Jeanette Kyle-Davidson, Grievant's wife.  No major dispute exists regarding the events in this conversation.

            Stanton and Grievant criticized the Marlins' range,[5] and sought permission to provide their own Mini-14's.  Burkhart told them to talk to Captain Pitts, but mentioned the Department's safety concerns over in-town use of Mini-14's.  Grievant and Stanton unsuccessfully sought permission to carry Mini-14's for use in rural areas.  They described recent incidents in which deputies found them­selves out-gunned.  Burkhart suggested that, in similar situations, they assess the situation and decide whether to engage the suspect, set up a perimeter and contact a supervisor to request call-out of a SWAT team, or take other action.

            No witness, including Grievant, recalled Burkhart suggesting that deputies refuse to go to the scene of an incident.  Burkhart ended the conversation with the impression that Grievant and Stanton disagreed with the decision on the type of rifle to use.  Stanton did not view Burkhart's comments as a change in policy regarding when to respond.  He did believe it expressed an intention to call out the SWAT team more readily than in the past.  Grievant testi­fied Burkhart cut off any attempt at clarifying his responses by saying it was Pitts' decision, and that Pitts was unavailable.  Grievant testified he decided to contact a supervisor for clarification if a situation arose.

OTHER EQUIPMENT ISSUES

            Deputies provide their own handguns.  Except for the resident deputies' Mini-14's, the Department prohibits deputies from using their own long guns.  No written policy requires deputies to carry long guns.  After the Department removed the Mini-14's, it issued a memorandum prohibit­ing deputies from using their own ammunition because of concerns over non-standard rounds.

            The Department does not maintain a record of when employees shoot long guns at the Department's range.  It does keep records of their qualifications with a handgun.  Grievant is an expert marksman.  Range Master Norman Hatcher testified a person who was proficient in using a shotgun should be able to handle a Marlin rifle.  Hatcher testified Grievant had shot Marlins before April 19.  Grievant testified he had shot the Marlins off-duty, but not at the range, before April 19.

            Sometime before April 19, Hatcher ordered Mrkvicka to turn in his Department-issued shotgun, leaving him with his handgun and his own Mini-14.  Mrkvicka believed at the time that the Department had removed shotguns from all deputies.  He testified he would have preferred to have a shotgun with him at the April 19 incident.  He later requested and received permission to add a Department shotgun to his arsenal.  He has never used Department shotgun ammunition, but instead supplied his own.  Mrkvicka testified he would not want to have a Marlin .45 rifle in a situation where he might have to use deadly force over a distance.

            Grievant testified he frequently had trouble finding shotgun ammunition in the Department's gun locker.  He brought the shortages to the attention of the sergeant on duty, but they continued.  He brought in his own shotgun ammunition, and once borrowed a box of .00 buck shotgun shells from the OSP.  While he was using that ammunition, he stopped checking the locker.  However, he stopped using that ammu­nition after the Department issued orders prohibiting deputies from pro­vid­ing their own ammunition.  He eventually stopped carrying a shotgun because of the contin­u­ing ammunition shortages.

            Stanton testified that in early 1994 he found no shotgun ammunition in the locker more often than not.  When there was no ammunition, he did not carry a shotgun on duty that day.  He notified the sergeant on duty of the shortages and of the fact that he was not carrying a shotgun.  This sometimes resulted in the ammunition being replenished.  He testified the shotgun ammunition was replenished shortly after the April 19 incident, and has not been in short supply since.

            Hatcher testified he last replenished the shotgun ammunition supply in the gun locker in February 1994, when he placed five boxes of shells there.  Normally, he would expect that supply to last a year or more.  He told Pitts during the investigation of this incident that he had continual problems keeping all kinds of ammunition in the locker.  He testified he has never received a report that the locker had no ammunition, or that the shotgun ammunition needed to be restocked, nor has he ever found the locker empty of ammunition.  However, he acknowledged that at times the ammu­ni­tion supply has disappeared rather quickly.

THE DEPARTMENT'S INVESTIGATION

            Pitts asked Grievant to prepare a memo describing his view of the incident.  That memo reads as follows:

            Dispatch gave info of a man with a gun walking through the trailer park at 1663 Greensprings firing rounds.  Dispatch had limited info, and again advised of shots fired at trailer homes.

            These are the conditions which the Sheriff had advised are not to be handled by town deputies, and a supervisor was to be notified for SWAT call out.  Other examples were barricaded subjects, hostages, and persons armed with weapons (rifles) having superior range and accuracy.

            With this situation I informed dispatch to advise a supervisor, as per the Sheriff's instruction in March 94.  Dispatch notified Sgt. Schrieber who ordered myself and Mrkvicka to respond.  I did, and set up a perimeter.  Mrkvicka located the respon­sible by witness contact.

            We took the subject into custody on warrants, who had been semi-barricaded in a camp trailer.  He was armed with a .22 cal. semi-auto rifle, loaded and safety off.

            After he was lodged, Sgt. Schriber [sic] requested me to explain the incident.  I advised of the instructions of the Sheriff.

            Due to no shotgun rounds previously available, I had brought some from home and also obtained some from OSP.  After the directive to remove all "unauthorized equipment" I considered that to also mean my shotgun ammo.  This leaves me with my side arm.

            The other equiptment [sic] needed as I was instructed to relay to you by Sgt. Schrieber, is a weapon comparable to some of those commonly used by the criminal element.  This has already been discussed with the Sheriff, who already gave the directive to back off set up a perimeter and notify a supervisor for a SWAT call-out.

            This is not very practical or realistic as the situation is normally over or exploded by the time SWAT arrives, or they refuse to become involved because no crime has occured [sic] yet, or it's not a felony.

            I am confussed [sic] as to which method I am to use, and when to/not to respond into a call and handle it, or back off.

            Until otherwise directed I will continue under the Sheriff's directive of not becoming involved in such volitile [sic] situations without the proper training, equiptment, [sic] and manpower.

Pitts also requested memos from others who overheard the 911 traffic on April 19, as well as those present during the conversation with Burkhart.  He received memos from all those who participated in the conversation with Burkhart, and one memo from Deputy Rod Dailey, who had served as backup for Grievant and Mrkvicka on April 19.  Dailey recalled that 911 reported a man "fired several random shots from a shot gun [sic] into other trailers" and was waving the gun around.  Dailey heard Grievant's request for a supervisor and his reference to "criteria" and a lack of equipment; he did not hear Grievant refuse to respond to the call.  Instead, he said Grievant "advised that he would not go into the scene, he would only set up in a position on the perimeter."

            Pitts' report briefly summarized his interviews of ten people, including the 911 dispatcher, but not including Dailey.  The dispatcher did not testify.  Her comments, as reported by Pitts, included the information that Grievant never said he was not going to go, and that she believed he was re­spond­ing because his radio sounded mobile.

            Pitts tape recorded two interviews with Grievant.  In the first interview, Stanton served as Grievant's Association representative.  The second interview followed Pitts' investigative report.

            In the first interview, Grievant described his conversation with Burkhart.  He told Pitts he had not intended to lead the dispatcher to believe he was not going to respond, and that he was al­ready en route to the car when he requested a call to a supervisor.  He said he wanted clarification from a supervisor on how far to "respond into" the situation in light of the removal of the Mini-14's.  Because it sometimes takes time for a dispatcher to find a supervisor, he wanted the supervisor to be involved early.  He distinguished between "responding into" a situation and setting up a perimeter.

            Grievant said he did not recognize the appella­tion "Sam3" used by 911, and therefore sought clarification of the identity of the supervisor.  He explained his comment about a lack of equipment was a reference to the Mini-14's and a lack of shotgun ammunition.  He told Pitts his weapon of choice in this inci­dent would have been a Mini-14 with a hollow point or soft point to avoid over-penetration.  He expressed concerns over the Marlins' accuracy.  He claimed he notified Sergeant Woods of a lack of shotgun ammunition, but did not follow up on it.  Instead, he said he began carrying his own ammunition from home.

            In the second interview, Grievant disputed the accuracy of Pitts' report of some witness' observations.  In particular, Grievant claimed that Mrkvicka denied saying Grievant had stopped in the restroom.  He also said the dispatcher had told him she believed the entire time that he was responding to the call.  He claimed that some alleged witnesses had reported they were unable to hear the majority of the 911 conversation.

            After Grievant's second interview, Pitts called Mrkvicka to ask if he remembered Grievant using the restroom.  Pitts told Mrkvicka he was either lying to Grievant or lying to Pitts, because Pitts' notes said he had said Grievant went to the restroom.  According to Pitts, Mrkvicka responded his memory was not real good, but his memory would have been better at the time Pitts wrote his notes.  Pitts concluded he could not show one way or the other whether Grievant had used the rest­room.  He did not revise his report or make a notation on it of the results of this conversation.

OTHER EVIDENCE REGARDING GRIEVANT'S CONDUCT

            Mrkvicka testified he disregarded Grievant's comments to the dispatcher as they drove to the trailer park.  He was surprised by Grievant's comments, and considered them inappropriate.  How­ever, they did not distract him from his duties.  Schrieber testified he heard only Grievant's request to contact a supervisor, but did not hear the later request to contact a patrol sergeant.

            Grievant testified he could have used better terminology over the radio.  In particular, he believes he should have said he was en route but wanted clarification from a supervisor on how to deal with the situation.  He wanted a super­visor to decide whether he should try to deal with the situation himself, or merely set up a perimeter and await the arrival of others.[6]  He characterized the situation as a breakdown in communications.

            Grievant attributed his lack of clarity to the fact that he was picturing the trailer park and the circumstances as well as his instructions from Burkhart as he was respond­ing.  He testified he was uncertain whether Schrieber knew of Burkhart's comments in the break room, or that the Mini-14's had been removed.  In the past, Schrieber has sometimes consulted a patrol sergeant or captain to get clar­ifi­ca­tion of policy before responding to questions about patrol issues.  Grievant testified he questioned the adequacy of his equipment because of the information avail­able to him from 911.  In particular, he did not know what type of weapon the suspect had.

DEPARTMENT DISCIPLINARY POLICY[7]

            EMPLOYEES DISCIPLINED

            The Department has suspended 17 employees since March 1989.  Of those, five were sus­pended for 10 days or more; the others were for between one and five days.  Of the latter group, the Department imposed one-day suspensions for

            (1) making off-duty calls to a citizen after being ordered not to do so,

            (2) attempting to access another employee's computer files without authorization, a criminal offense, and

            (3) making an unauthorized traffic stop after having been warned about such conduct.[8]

It imposed two-day suspensions for

            (1) a traffic accident caused by inattention and the failure to yield the right of way, and

            (2) allowing a person known to have a suspended operator's license to drive, and having a sexual relationship with the operator's sister.

It imposed three-day suspensions for

            (1) causing damage to a Department vehicle due to inattention,

            (2) going on days off without submitting a report, contrary to instructions, after prior problems in submitting reports on time,

            (3) making derogatory comments to a citizen (although the suspension would not have to be served if the officer successfully completed training),

            (4) domestic abuse of the officer's wife, and

            (5) allowing inmates to operate the control center in the jail.

It imposed a four-day suspension for pointing a firearm at another deputy, and a five-day suspension for a series of incidents causing safety and security concerns in the jail.

            Burkhart testified that Pitts once had a serious safety violation involving discharge of a firearm into a vehicle at the firing range.  Pitts expressed a desire to suspend himself.  Burkhart overruled him, and imposed lesser discipline that did not involve suspension.

            EMPLOYEES NOT DISCIPLINED

            [Deputy 1] was stopped for cutting timber without a permit, which is potentially a criminal of­fense.  Burkhart testified that [Deputy 1] was not prosecuted for the offense, nor was he formally disciplined for this incident.  [Deputy 1] had earlier been suspended for 20 days, with 10 days actually served, for assaulting a citizen.

            Grievant testified a female correction officer dropped a commercial container of hot dogs from beneath her coat while leaving the jail.  Burkhart testified the Department could not prove she had stolen the hot dogs.  No discipline ensued.

            Grievant testified he heard 911 attempt to dispatch [Deputy 2] on a theft call, with no re­sponse.  911 tried again, this time using the code for murder.  [Deputy 2] responded, but de­clined to take the call after learning it involved theft.  Grievant testified the dispatchers complained to him about [Deputy 2]'s non-response to calls.  Pitts and Burkhart testified that [Deputy 2] had the flex­i­bil­ity of not responding to some calls because of a special assignment to gang activity.  Pitts testified he explained this special assignment when he received complaints over [Deputy 2] not taking calls.  Pitts does not consider it appropriate for [Deputy 2] not to respond to 911 when called, but has not received com­plaints of such conduct.  Burkhart testified he has talked to supervisors about [Deputy 2] and that they acknowledged he had a history of not responding to calls.

            In March 1994, Pitts received a memo from Civil Deputy Rebecca Dailey about [Deputy 3].  Dailey reported that 911 had tried to dispatch [Deputy 3] to serve a restraining order after a disturbance involving the subject, but [Deputy 3] had refused, claiming it was civil deputy work.  Dailey turned on her scanner, and heard [Deputy 3] pick up the restraining order and report he had served it.  [Deputy 3] commented on the air that "they had been called at the reportee's whim and the [sic] he had served the Restraining Order but he felt used."  Pitts testified [Deputy 3]'s comment was inappropriate.  He called [Deputy 3] in to discuss the incident.  No notation was made in [Deputy 3]'s personnel file over the incident, nor did other discipline ensue.

            Mrkvicka testified he overheard 911 traffic involving [Deputy 3]'s contact with an ex-convict who had been involved in a hit-and-run motor vehicle accident.  [Deputy 3] radioed that the suspect had a gun.  After a period of silence, [Deputy 3] radioed a Code 4 (meaning everything was okay).  He then said he had insufficient information to place the suspect behind the wheel, so he had issued a citation for hit-and-run.  According to Mrkvicka, an ex-convict in possession of a gun is a felony, which normally would result in an arrest on the spot.  [Deputy 3]'s comments made no sense to Mrkvicka.  The next day, Mrkvicka described the incident to Sergeant Woods and suggested he coun­sel [Deputy 3].  Mrkvicka testified the incident became the subject of discussion among personnel from other agencies, and reflected unfavorably on the Department.  No discipline arose out of this incident, and Pitts testified he was unaware of it.  Between the first and second days of this hearing, Pitts initiated an investigation of the matter.

            Grievant and Stanton recalled that Pitts characterized [Deputy 3] as having a "yellow streak."  Pitts acknowledged commenting to Grievant and Stanton that [Deputy 3] had a fear factor or a lack of confidence, but not using the term "yellow streak."

            In 1994, [Deputy 4] had a dispute with OSP officers over responsi­bil­ity for investi­ga­tion of a stolen vehicle that had become involved in an accident.  Both agencies had been called to the scene.  Trooper Lawrence Behrenz testified the dispute delayed the investigation, and that citizens were calling the OSP to request an investigation after being told the Sheriff's Office would not in­ves­ti­gate.  He recalled that OSP Trooper Austin was quite upset over [Deputy 4]'s refusal to investigate at the time of the accident.  Grievant testified other OSP officers commented to him after the inci­dent, criticizing [Deputy 4]'s conduct.  Pitts testified he was aware of a public argument between [Deputy 4] and Trooper Austin over which agency should investigate, and he re­ceived a report from the OSP that Trooper Austin had taken inappropriate action.  He later learned the OSP intended to complete the investigation.  No formal complaint was filed over the incident, and Pitts did not investigate [Deputy 4]'s conduct.

            Behrenz testified [Resident Deputy 5] was assigned to an arson investigation in Malin.  Behrenz also responded as a member of the Klamath Area Arson Strike Force, a multi-agency team.  [Deputy 5] became upset when he realized the Strike Force had also been called to the scene.  Behrenz assured [Deputy 5] he was merely collecting evidence, and that he would leave the evidence for him with the Malin police.  Four months later, Behrenz learned [Deputy 5] had never retrieved the evidence or followed up on the investigation.  By then, the passage of time had rendered the evi­dence useless.  Pitts testified he received no complaints over [Deputy 5]'s handling of the arson investigation, and that arson investigations normally were assigned to a Strike Force member rather than to deputies such as [Deputy 5].  Burkhart testified he may have received a complaint from the Malin police chief.  He testified it would be inappropriate for an officer to fail to complete an assignment to investigate an arson, and could result in discipline.  [Deputy 5] received no discipline.

OTHER EVIDENCE PRESENTED BY THE UNION

            Burkhart testified that, in recent months, he has told Grievant that if he did not start conforming and becoming a team player and professional officer, he would be fired.  He made a similar comment to Stanton, and may have made a similar comment to Mrkvicka.  He testified that Grievant and Stanton challenge his authority quite often.  Grievant is not vocal to Burkhart regarding his disagreements with Department policy, but questions things often.  Burkhart acknow­ledged he may have criticized Grievant for filing an overtime claim one or two years ago.  Stanton was also involved in that claim.  Kyle-Davidson testified Burkhart told her in September he had signed the paperwork for her raise under the Jeanette Kyle part and not the Davidson part.

      POSITION OF COUNTY

            The appropriate burden of proof is preponderance of the evidence.  The County has sus­tained its burden by demonstrating the policy violations found by Pitts.  The level of discipline imposed was not arbitrary or capricious.

            Discipline was imposed for the entire course of conduct on April 19, not just the claim that he had been advised not to respond to such calls.  Grievant's conduct was improper in three respects.

            (1)  Grievant's statement that he would not go to [sic] the call was unprecedented, and at odds with his training.  His actions put the Department and the public at risk.  It is beside the point that he responded to the call and took the suspect into custody.  No one knew he was going to the call until some four and one half minutes after it was dispatched.  Meanwhile, the dispatcher had to call Schrieber twice to get permission and clarification.  Mrkvicka had to disregard his comments.

            The evidence does not support Grievant's contention he was following Burkhart's di­rectives.  Others at the conversation do not recall Burkhart stating or implying that deputies should not re­spond to calls where weapons are involved, or should hold off responding until a super­visor could be called for possible SWAT call out.  Grievant never sought clarification of this purported directive.

            If the April 19 incident had resulted in injuries and a lawsuit, Grievant's comments would have had a negative impact on a jury.  That the situation did not play out as originally dispatched does not make his conduct any less culpable.

            (2) Grievant questioned the orders of a supervisor, in direct contradiction of Sheriff's Policy 2.006.  He was "Sergeant shopping."  His attempted justifications are not credible.  It was clear that the sergeant on duty had authority in any incidents requiring supervision.  Grievant never expressed confusion over Schrieber's role as supervisor or the command structure.  Mrkvicka and Stanton had no ques­tion Schrieber was in charge if a patrol supervisor was not available.

            (3) Grievant failed to have the proper equipment, by his own admission.  Although not re­quired to carry any particular kind of firearm, he had a variety of weapons available.  If he did not believe he had the proper equipment to be on the road, it was his responsibility to correct that situ­a­tion.  His claim of lack of ammunition should not be credited, nor should his claim that he was not qualified with the Marlin rifles.

            Grievant admits being out of line in saying this was a call he had been advised not to re­spond to.  He was more than just out of line.  He violated several policies, subjected the Department to rid­icule, and put it at risk of failing to fulfill its primary mission of protecting the public.

            The level of discipline imposed was justified.  The Arbitrator should not substitute her judg­ment for that of management unless the penalty is excessive, unreasonable, or an abuse of discretion.  No credible evidence exists of disparate treatment.  Other incidents of alleged misconduct are not similar to Grievant's conduct here.  Even if the other situations were similar, a rational explanation exists for the purported different treatment of other employees.

            [Deputy 2] was ordered not to respond to particular calls at times.  [Deputy 3]'s radio com­plaint about "feeling used" was far less serious than Grievant's conduct on April 19.  Pitts did not become aware of [Deputy 3]'s failure to arrest an ex-convict in possession of a weapon until this arbitration, and has not completed his investigation.  [Deputy 4] did not refuse to respond to the stolen vehicle/auto accident, and all witnesses agree he did respond.  No complaint was ever made concerning [Deputy 4]'s actions in that incident.  [Deputy 5] did not refuse to respond to the scene of an arson, nor could Pitts recall any complaint over his handling of the arson investigation.

            None of the instances for which discipline was imposed resemble Grievant's conduct.  A mean­ing­ful comparison of the level of discipline therefore cannot be made.  Moreover, most of the discipline imposed was more severe than that imposed on Grievant.

            Grievant's conduct was unprecedented.  The Department was well within its right to fashion appropriate disciplinary sanctions.  The decision to impose what amounts to a two-day suspension was neither arbitrary nor capricious.

      POSITION OF THE ASSOCIATION

            As a non-probationary employee, Grievant has a recognized property interest in continued employment.  The Agreement prohibits discipline without just cause.  It does not define that phrase.  The Arbitrator therefore must decide whether just cause existed.  The seven tests articulated by Arbitrator Carroll Daugherty in Enterprise Wire summarize the "common law" definition of just cause.  Applying those tests, the only viable conclusion is that the County did not have just cause for this suspension.  The County bears the burden of showing just cause.

            Grievant did not receive adequate notice of the possibility of suspension for his conduct.  He was aware of the Sheriff's Policies.  However, the Department did not evenhandedly enforce those Policies.  Grievant had not been disciplined before.

            The Association does not contest the reasonableness of the Sheriff's Policies.  It also does not dispute that the Department conducted an investigation.  However, that investigation was not fair and objective.  Pitts was reluctant to even give Grievant credit for his handling of the incident.  He threatened Mrkvicka with discipline for untruthfulness when he tried to clarify his responses.  Pitts was unaware of basic safety issues surrounding response to a critical call.  Until persuaded to do so by the Arbitrator, the County refused to turn over records of discipline of other employees.  That refusal violated Employee Relations Board case law and volumes of arbitration decisions.

            Because of its bias, the Department failed to recognize how the facts of this case correlate with the Sheriff's Policies.  Under Rule 2.001, the dispatcher was not "the public" that required assistance; the complainant was.  Grievant did not violate the plain meaning of this rule.  Under Rule 2.005, Mrkvicka was the only witness who testified he heard the comments and believed they were inappropriate.  The hearsay statements recounted in Pitts' report should not be considered for the truth of the matters asserted therein.  Even if the Arbitrator considers those statements, one of the dispatchers indicated awareness of Burkhart's policy that caused the problems in this case.  The dispatcher's confusion could be viewed as a violation of Rule 2.005, but was de minimis.  It did not cause discredit to the Department for what was said, as much as discredit for the way the Department has handled the availability of weapons and ammunition.

            Under Rule 2.006, Grievant obeyed orders.  Questioning orders is not disobedience as long as the orders are promptly obeyed.  Under Rule 2.018, Grievant took all appropriate action in an emergency.  Grievant did not have a shotgun with him, but no rule required a deputy to have a rifle or long gun with him.

            Grievant did not violate Rule 3.019.  The testimony is uncontradicted that Grievant and Stanton had informed their sergeant on a number of occasions of the unsafe working conditions, because they did not have shotgun ammunition.

            The charge of incompetency under Rule 3.021 is double-charging.  Grievant responded to the call competently.  While his comments to the dispatcher were confusing, they do not fall within the technical definition of incompetency because he promptly performed his assigned task.

            The County has not applied its rules, orders and penalties evenhandedly and without dis­crim­i­na­tion.  In numerous other instances of policy violations, the County either imposed no discipline whatsoever or "counselled" an officer.  Burkhart admitted discrimination against Grievant and Stanton.  He resented their filing of an FLSA claim.  He threatened both with termination for flunk­ing an attitude test, not for their professional performance.  [Deputy 2] did the same thing Grievant did--confused 911 and caused extra work for the dispatchers.  Even if he did not have to respond to a call, he should have acknowledged the dispatcher.  [Deputy 3] is immune from discipline despite numerous violations of policy.  Other deputies did not receive discipline for more serious conduct.  Discipline is ineffective and contrary to the goal of correction and rehabilitation if it is administered inconsistently and sporadically.

            Grievant's conduct was less serious than that of deputies who were disciplined.  Putting aside traffic accidents, every suspension without pay involves either a violation of criminal laws or multiple offenses.  Grievant's conduct is a non-criminal isolated incident of poor verbiage, brought on by sub­standard Department practices.  At the very least, the incident should be reduced to a docu­mented record of counselling or a written reprimand.  If discipline is to be upheld at all, a fair resolution would be counselling such as that [Deputy 3] received for his statements to the dispatcher.

            The degree of discipline was not related to the seriousness of the proven offense and the record of service.  The converse was true.  Pitts considered Grievant's experience an aggra­vating factor, not a mitigating factor.  The Department failed to consider his unblemished record.  It failed to consider the hostile work environment it had created because of his FLSA and union activity.  It failed to consider the double standard established regarding who can carry appropriate safety equip­ment.  Employees have been repeatedly denied access to shotgun ammu­ni­tion.  The County bears responsibility for these events, and those events should be considered in mitigation.

            The County has also ignored what occurred in this case.  Other than a frustrating few min­utes for the dispatcher, Grievant's comments caused no harm to anyone.  The County makes the most of what could have occurred had this been a serious call.  As a result of this investigation, the problem of insufficient shotgun ammunition has been resolved.

            The grievance should be sustained.  The Arbitrator should designate the County as the losing party under Section 27.4, and the County should bear the expenses of this case.

       OPINION

PRELIMINARY MATTERS

            As the parties recognize, the County bears the burden of proof in this discipline case.  The County must show both that improper conduct occurred, and that it war­ranted the level of discipline imposed.  It is not enough that the County was convinced by the evidence available to it at the time.  The County must submit that evidence so its veracity may be tested.  Factors upon which the County did not rely at the time, or which are not established by the evidence at hearing, play no part in the just cause determination.

            Hearsay evidence is admissible in the arbitrator's discretion, but is entitled to less weight than direct testimony.  Unsubstantiat­ed hearsay is entitled to no weight.  Absent cross examination, one cannot gauge the witness' opportunity to observe, perceive, recall, and describe events accurately.  One cannot resolve inconsistencies or determine whether any portion of the witness' account arises from speculation, mistake, or bias.  One also cannot determine whether the person reporting the hear­say accurately recorded the declarant's comments.  Accordingly, except where corroborated by other evidence, the hearsay statements in Pitts' investigative report have been considered only as a record of the information upon which the Department relied, and not as proof of what occurred.

            With limited exceptions,[9] cause for discipline requires clear and unequivocal notice of the con­duct expected and the consequences for failure to meet that standard.  It is of no moment whether the Arbitrator would consider par­tic­ular conduct unaccept­able.  Rather, the inquiry is whether the County has set a standard that makes such conduct unacceptable.  Where an employer has been lenient in the past, it must give prior notice that standards will be tightened.

            Due process is an essential part of just cause.  Before making a disciplinary decision, the County must make a reasonable and fair investigation of the alleged misconduct.  Where additional allegations surface during the investigation, the County must investigate those allegations if they would make a difference in the disciplinary decision.  The accused employee must have notice of the specific charges and an opportunity to give his side of the story before a final decision is made.  Finally, the ultimate decision-maker must be privy to all relevant information uncovered in the investigation at the time the disciplinary decision is made.

            Discipline must be corrective rather than punitive.  An arbitrator has no authority to second-guess the level of discipline merely because the arbitrator would have imposed different discipline. So long as the discipline is within the range of discipline proportionate to the proven offense, that discipline must stand.  However, if the discipline falls outside that range, or if the offense proven is less serious than the offense charged, then adjustment of the discipline is appropriate.

THE MERITS

            It is troublesome that Pitts did not update his investigative report to reflect the results of his second interview with Mrkvicka.  The Department does not now charge Grievant with taking time to use the rest­room.  No evidence exists that Burkhart, who was the ultimate decision-maker, knew of the re­moval of that charge at the time he reviewed Pitts' report and imposed discipline.  However, for the reasons which follow, it is unneces­sary to determine whether the degree of discipline would have been affected by formally removing this charge from the disci­plinary recommendation.

            Grievant admits that his verbal response to 911 was inartful and unhelpful.  That admission does not end the inquiry.  The real question is whether his response departed from the standards then in effect in the Department, such that discipline was appropriate.

            The County has set up a straw man in characterizing Grievant's description of his instructions from Burkhart.  Grievant has never said he was told not to "go to" the scene; he said he was told not to "respond to" such situations.  The Arbitrator cannot conclude that the two phrases have the same meaning in context.  This is particularly so in light of the fact that Deputy Dailey's memo made the same distinction between "responding to" an incident and merely setting up a perimeter.

            Policy 2.001 prescribes certain duties toward "the public."  In common usage, that term refers to persons who have occasion to seek police assistance, not the police officers and dispatchers engaged in rendering that assistance.  Consistent with that meaning, the Sheriff's Policies include a separate provision, Policy 2.002, requiring cooperation with Department personnel and other public agencies.  Accordingly, the inquiry under Policy 2.001 is whether Grievant responded promptly to the complainant's request for service.  Under any view of the evidence, he did.  He and Mrkvicka left the restaurant promptly, and proceeded directly to the scene.  The calls to Schrieber did not delay that response.  The Department thus has not established a violation of Policy 2.001.

            Policy 2.005 prohibits conduct which brings discredit on the Department.  The most reason­able interpretation of this rule is that public discredit is an aggravating factor where otherwise improper employee behavior occurs.  In other words, if an employee acts in accord with Department policy, the employee cannot be faulted if others believe the policy to be unwise.

            Setting aside the defunct using-the-restroom charge, the only specific charge in the investi­ga­tive report under Policy 2.005 is the same conduct underlying the alleged violation of Policy 2.001--the delay in advising 911 he was en route.  No evidence exists of any minimum time within which depu­ties are required to so report.  Absent such a rule, the failure to report that in­for­mation does not necessarily bring discredit on a deputy or the Department.  Indeed, Mrkvicka first uttered those words more than three minutes after the dispatch, but is not charged with misconduct.

            At the time Pitts wrote his investigative report, he also charged Grievant with having stopped to use the restroom.  In that context, a lengthy delay in advising 911 he was en route underscored the reason for the concern with the restroom stop--namely, that he delayed in going to the scene.  Absent such a delay in starting en route, however, the Department has not established any impro­pri­ety in the delay in saying he was en route.

            At hearing, Pitts amplified the charges under Policy 2.005 in two respects.  First, Pitts tes­ti­fied that Grievant's response confused the dispatcher and other officers regarding his intentions.  Second, he argued the entire exchange brought discredit to Grievant and the Department in the eyes of anyone who overheard it.

            The dispatcher did not ask whether Grievant was refusing to take the call.  According to Pitts' report, the dispatcher believed he was responding.  Similarly, Dailey, who arrived as backup at the incident, did not report any confu­sion.  Therefore, assuming arguendo that creating confusion would "bring discredit," the record does not establish that confusion reigned.

            Pitts testified to a two-pronged rationale for alleging discredit in the eyes of other 911 listeners. The first prong is, in essence, that Grievant either sounded foolish or made it appear the Department had implemented a bizarre pol­icy in claiming that he was not to re­spond to calls of this nature.  The second is that Grievant proclaimed himself ill-equipped to respond to the call.

            The Arbitrator has no doubt that some listeners were taken aback by Grievant's comments.  However, on this record, the Department does not impose discipline for merely sounding foolish--on the radio or in public.  In some instances, it does not even investigate reports of such difficulties.  Sergeant Woods did not pass on to Pitts Mrkvicka's report that a deputy had neglected to arrest an ex-convict found with a gun, nor is there evidence that he followed up on the report himself.  Burkhart did not pass on to Pitts a complaint from local police over an unfinished arson investi­ga­tion, nor did he take action on the complaint.  Pitts used only verbal coun­sel­ing for a churlish radio complaint about the allocation of civil and criminal work.  The Department took no formal disci­plin­ary action for potentially criminal behavior in cutting timber.  The instances in which the Department has investigated and disciplined employees in­volved either mul­tiple mis­con­duct or very severe mis­con­duct.  Grievant's intemperate remarks simply did not rise to the same level.

            Policy 2.006 requires prompt obedience to orders.  An expression of concern over orders does not equate to disobeying those orders, so long as the employee nonetheless promptly obeys those orders.  Grievant promptly obeyed the order to go to the trailer park.  Indeed, he was already en route when Schrieber gave the order.  Thus, Grievant did not violate the plain letter of this rule.

            Assuming that "sergeant shopping" would violate the spirit of Policy 2.006, Grievant's conduct did not meet that description.  He testified without contra­diction that the jail sergeant has some­times consulted patrol sergeants or the captain on patrol issues.  His request for such a con­sulta­tion on this occasion was consistent with that practice.  This is particularly true given the information from 911--that Schrieber was not familiar with the "protocol on calls" and that it was "not unusual that something wouldn't have made it to him yet."  This told Grievant that Schrieber did not realize his concern involved the removal of Mini-14's.  It was not unreasonable to ask for contact with a patrol sergeant who was more likely to be aware of recent changes in equip­ment.  Moreover, as Schrieber's reported comments disclosed a breakdown in com­mu­ni­ca­tions, it was appropriate for Grievant to clarify the reason he asked for supervisory input.

            Policy 2.018, in essence, requires employees to be ready to engage in the normal activities of a police officer.  The rationale for charging Grievant with a violation of this policy is that he (1) proclaimed himself insufficiently equipped to deal with the type of situation reported and (2) was confused and did not seek clarification.  This rationale is also the basis for the charge under Policy 3.019, dealing with safety, and Policy 3.021, dealing with incompetency.

            It is reasonable to infer that carrying a long gun, in addi­tion to a handgun, better equips a deputy to deal with a variety of situ­a­tions.  However, the Department has not seen fit to require deputies to so equip themselves daily.  Thus, Grievant's failure to carry a shotgun or Marlin rifle was not a breach of any formal rule or policy.

            A duty to carry a long gun could arise from a well-recognized standard among police officers, even absent a formal rule.  However, no evidence exists of such a standard in this Department.  On the contrary, Stanton testified without contradiction that he had told sergeants he was not carrying a shotgun due to the lack of ammunition.  No reprimand or order to carry a long gun ensued.

            The charge that Grievant failed to carry the equipment he believed he needed for emer­gency calls implies that he had it within his power to carry such equipment.  On this record, he did not.  He had been specifically denied permission to carry a Mini-14, his preferred weapon.  Ammuni­tion shortages[10] had discouraged him from carrying the shotgun.  On this record, he took reason­able steps to equip himself with the firepower he believed he needed, but was unable to secure it.

            The charge of letting himself remain confused bears some study.  Grievant and Stanton dis­cussed with Burkhart scenarios where they believed a Mini-14 would be the weapon of choice.  After that discussion, Grievant's principal reported confusion was not over whether to go to such calls, but over how well it would work to await a possible SWAT call-out in a situation where he might be out-gunned.  Grievant can be faulted for not seeking clarification from Pitts before an incident arose.  However, in this Department, formal discipline was an atypical response to minor lapses in judgment.

            For all the above reasons, it is concluded that the Department did not have cause to suspend Grievant.  He did show minor lapses in judgment and faulty communications skills.  However, on this record, the Department has not initiated an investigation, much less imposed discipline, for shortcomings of similar or greater severity.  Having set the standard it did, the Department must give notice to employees that it intends to raise the standard.  This it has not done.

            Accordingly, the suspension shall be rescinded and all record of it expunged from Grievant's files, and he shall be made whole for any losses suffered thereby.  Pursuant to Article 27.4, the County is the losing party in this matter.

          AWARD

 

 

            1. The Sheriff's Department did not have just cause to discipline Deputy Davidson.  As a remedy, it shall rescind the discipline and expunge all refer­ence to it from its records.  It shall also make him whole for any loss of earnings and other benefits occasioned by his suspension.

            2. The County is the losing party in this matter.

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

 

            DATED:  March 2, 1995

 

 

                                                                                                                                                                     

                                                                                                               LUELLA E. NELSON - Arbitrator