This Arbitration arises pursuant to Agreement between Oregon Public Employees Union ("Union"), and State of Oregon ("State"), Department of Education ("Department"), 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 15, 1995, in Salem, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties submitted the matter on closing oral argument.

APPEARANCES:

On behalf of the Union:

Lynn-Marie Crider, Esquire, Oregon Public Employees Union, 1730 Commercial Street, SE, P. O. Box 12159, Salem, OR   97309-0159

On behalf of the State:

Stephanie Harper, Esquire, Assistant Attorney General, Department of Justice, 100 Justice Building, Salem, OR   97310

ISSUE

Whether the reprimand of November 16, 1994, was for just cause; and, if not, what is the remedy?

RELEVANT DEPARTMENT POLICY

ADMINISTRATIVE BULLETIN 1.2 (Revised 1988)

...

Although the Government Ethics statutes do not prohibit conflicts of interest, the law places the burden of reporting such conflicts on the individual and mandates that public notice be given by every public official encountering a potential conflict of interest.  This bulletin has been developed to assist the Department employees, and the members of the State Board and advisory committees and commission to meet their obligations under the law.  It provides a uniform policy and identifies requirements set forth in the conflict of interest laws and the code of ethics (ORS 244.040).  Further, it is the policy of the department that its employees should avoid even the appearance of a conflict of interest.

A.            DEFINITIONS AND TERMS USED IN THIS BULLETIN

...

10. Personal Gain:  Payment for services, gift, gratuity, honorarium (whether paid to the public official or his/her family), but excluding actual expenses incurred while attending a meeting where the public official's presence is of mutual benefit to the organization and the Department.

...

B. CODE OF ETHICS

 

ORS 244.040 outlines the Code of Ethics which prohibits Department employees, Board members and advisory committee and commission members from:

 

1. Using his/her official position or office to obtain financial gain for himself/herself, other than official salary, honoraria or reimbursement of expenses; nor shall the action benefit ... any business with which he/she ... is associated. ....

 

MEMORANDUM NO. 4-1993-94

(Issued September 1, 1993)

Pursuant to ORS 244.040, the Oregon Ethics Commission has issued guidelines for the outside employment of public officials which include the following:

 

1. That private business not be conducted on public time.

2. That public supplies, facilities, equipment, and personnel not be used to carry out private business.

3. That employees will notify their appointing authority in writing of a potential conflict of interest if private endeavors could potentially be affected by public employment.

 

"Public official" and "private business" mean all staff and any entity operated for eco­nomic gain, whether personal gain or gain for income-producing nonprofit corporations.  "Private business" includes Mary Kay, Avon, Tupperware, Christmas orders, for example, and similar private enterprise.  Staff using state facilities, time, supplies or personnel to conduct private business are in violation of state law.  This includes ... enjoyment of benefits such as accessibility which are not available to persons who are not public offi­cials.  State supplies, including unreimbursed usage of copy machine may not be used for private business or personal benefit, whether the staff person is on duty or off duty. ...

MEMORANDUM NO. 9-1994-95

(Issued May 18, 1994)

...

* Each work unit will develop a system for sharing schedules/calendars of their employees.  Weekly schedules, including destination, contact person and phone number where staff can be reached, will be available in each section ("IN" and "OUT" are not acceptable).

...

* Work units should use the same voice mail password so that other staff can access messages if necessary.

...

* Check your voice mail several times daily even when you are "out in the field."  ...

*. Don't use voice mail as a filing system or a "To Do" list.  Mailboxes that reach capacity and cannot accept messages will be reported to me.

....

FACTS

BACKGROUND

Grievant is an expert in the areas of civil rights and American Indian education.  She has worked for the Department in a salaried exempt position as an Education Program Specialist ("EPS") since January 1987.  Her duties require daily contact with persons in other states and the District of Columbia.  In addition to her work for the Department, she does private consulting and train­ing nation-wide.  Although the Department does not prohibit such private work, it requires employees to report it, and prohibits them from using paid time or State resources in pursuit of such endeavors.

The normal work day for an EPS is from 8 a.m. to 5 p.m.  Their duties require evening or week­end work, often away from their office in Salem.  They receive compensatory ("comp") time, but not over­time pay, for overtime work, which must be approved in advance by their super­visor.  The Department requires them to complete a weekly schedule in advance, indicating their planned loca­tion(s) each day and the telephone number where they can be reached; as those plans change, they are to notify the Department.  It also requires them to fill out a time sheet reporting the number of hours worked each day.

This grievance arose out of the Department's concerns with the interplay between Grievant's duties and her private work.  On September 22 and 27, 1994, Grievant filled out her time sheet to show eight hours' work.  The Department alleges her weekly schedule and other communications did not reflect her plans or actual activities, and that she should have shown fewer hours of work on those dates; it also raises allegations about use of its telephone for her business.  The Union asserts Grievant was reprimanded for conduct that was consistent with Department practices and policies.

THE NOVEMBER 16, 1994, REPRIMAND

Assistant Superintendent Merced Flores issued a Letter of Reprimand on October 10, and replaced it with a revised version on November 16.  The revised version at issue reads, in relevant part, as follows:

A recent series of events have [sic] caused us to review your scheduled work activities.  This memo documents the meeting of October 3, 1994, attended by you, Jerry Rogers, Linda Couoh, and me, in which you were asked to respond to questions regarding your scheduled work activities for the weeks of September 12-16 and September 19-23, 1994, and the use of state equipment (specifically the telephone) to carry out private business.

 

I have asked all Compensatory Education staff to complete a weekly schedule, indicating their planned activities for the coming week.  On the schedule you submitted for anti­ci­pated activities the week of September 12-16, 1994 (copy attached), you indicated a 1:00 p.m. meeting on Thursday, September 22, 1994, with Floy Pepper regarding American Indian Baseline Essays.  You stated that the meeting was held at Floy's home (telephone number which appears on weekly schedule).  Your weekly schedule indicates 1:00 p.m.  When you were asked what time you arrived, you estimated that you arrived at 12:30^[1] and left "About 2:00."  At 1:35 p.m. on September 22, you left a voice mail message at the Department, indicating you had finished the meeting with Floy Pepper and would be com­plet­ing paperwork the rest of the afternoon.^[2]  When asked where you were when you placed that call, you stated you were at the Portland Airport.  You said that you waited about an hour for your flight, and while waiting, you worked on a brochure, revised two letters, and reviewed some Portland School District materials.  When asked what time your flight left, you said, "about 2:00."  You stated you felt you had worked a full day on Department business and had brought the work products back to the office on Monday morning, September 26.

 

On the schedule you submitted for anticipated activities the week of September 26-30, 1994, you were scheduled to be at a Site Council Workshop at the Valley River Inn in Eugene on Monday and Tuesday, September 26 and 27.  You indicated you stopped by the office here in Salem Monday morning, September 26, and then went on to Eugene.  You stated that you participated in the Eugene workshop on Monday and attempted to contact Comp Ed staff by phone numerous times, but encountered a recorded message indicating the number you were trying to reach was invalid.  You stated that you attended sessions on Tuesday until "around 2:30" when you left to drive to Portland.  When asked why you left at 2:30, you said you wanted to allow enough driving time so that you would not accrue comp time.  At 3:49 p.m., Tuesday, September 27, you left a voice mail message for me, indicating you had talked with Lorisa earlier, that there did not appear to be any work issues, and that you would be leaving soon to get "on the road."

 

Mid-morning on Tuesday, September 27, the 2nd Floor receptionists found that calls routed to your office phone were coming back to them because your voice mail had reached capacity.  When this occurs, it is necessary to access the mailbox, record the messages manually, and then delete them so that new messages can be recorded, which was done.  You were provided with a list of those messages at our October 3 meeting (copy attached).  You had 17 "saved" messages and 3 "new" messages.  Among the saved mes­sages were several incoming calls from out-of-state.  One was recorded September 22 re­gard­ing a presentation scheduled for November 5 in Oakbrook, Illinois for which you would receive a $500 honorarium plus lodging, meals and travel, and asking that you arrive the day before the presentation.  Another call recorded September 22 was from the Alaska Department of Education regarding a conference in Anchorage, confirming your lodging at the Hilton Hotel for September 26 and 27, and indicating that a late arrival on Monday was OK.

 

On at least three occasions you have been directed not to use Department equipment to con­duct your private business.  The attached memorandum to you from Jerry Fuller, dated June 28, 1993, refers to your use of Department staff time and/or Department materials for personal gain.  The attached Memorandum No. 4-1993-94 from Bob Burns to all Department of Education staff dated September 1, 1993, clearly states that, pursuant to ORS 244.040, private business is not to be conducted on public time nor with the use of pub­lic supplies, facilities, equipment or personnel.  The attached copy of my memoran­dum to you dated September 12, 1994, includes a reference to Bob Burns' September 1, 1993 memo; refers to a discussion at the September 6, 1994, Compensatory Education staff meeting regarding the subject of use of state equipment and staff time; and directs you not use state equipment, materials, and supplies, or staff time for private business purposes.

 

In our October 3 meeting you indicated you could not control incoming calls and/or faxes, and that you could find no written policy that prohibits receiving incoming calls over which you have no control.  You said you never thought of incoming calls as "conducting private business" because you had not initiated the calls from here.  You said that you tell your personal business contacts not to call you at the office, but they have your number on your card, and you cannot prevent them from calling you here.  When asked if you had requested the callers from Illinois and/or Alaska not to call you here, you said you had not because you were not aware they had called, having just been furnished with a list of the voice mail messages at this meeting.  However, the September 22 calls from Illinois and from Alaska were in your "saved messages" mailbox, meaning they had been accessed previously.

 

To avoid the possible perception of mingling work time with private business, it is my expectation and the agency's expectation that you:

 

1) Inform all of your private business contacts not to contact you by any means (letter, phone, fax) here at the Department.

 

2) Do not use the business cards provided for you by the Department of Education for activities not directly related to your work assignments with this agency.

 

3) In spite of your best efforts, if you receive a phone call here at the Department which relates to your private business, you are directed to inform the caller imme­di­ately that you cannot discuss your private business on work time and end the conversation.

 

4) In spite of your best efforts, if you receive correspondence or faxes here at the Department which relate to your private business, you are directed to inform the con­tact, using your own means and time, that they are not to address correspon­dence or faxes to you at your work 

 

Robin, you must separate your private business activities from work activities.  Your ac­tions jeopardize the integrity of yourself, Indian Education, and the agency.  As stated in my memo to you dated September 12, when you have any questions regarding these is­sues, please contact me and we will try to resolve these situations up front before they become problems.

 

Based on the information you have provided regarding your schedule on Thursday, September 22, 1994, it appears that your [sic] were not in work status for the Department of Education after 2:00 p.m. on that date, but rather were conducting private business.  On your time sheet for the month of September you indicated 8 hours of regular work time on September 22.  You are directed to adjust your time sheet to reflect the actual number of hours in work status on that date.

 

Regarding your schedule on Tuesday, September 27, it appears you were in work status from the time you left Eugene to the time you arrived in Salem (your official work station).  You stated you left Eugene at 2:30, and travel time to Salem should not be more than one and one-half hours or 4:00 p.m.  Your 3:49 p.m. telephone message indicated your [sic] were leaving, which means your work status ended at that time.  On your time sheet for the month of September you indicated 8 hours of regular work time on September 27.  You are directed to adjust your time sheet to reflect the actual number of hours in work status on that date.

 

This memo constitutes a formal reprimand and will become a part of your personnel file.  ....

Grievant responded with a memo dated October 24, the text of which reads, in relevant part, as follows:

Since I gained approved leave for September 23 and September 28, and volunteered openly what was doing on those days to Merced, I find the accusations of dishonesty and impropriety quite baffling.

 

The Letter of Reprimand is an attempt to justify the inappropriate interrogation of myself based on some false assumptions by ODE, generated by invading my phone messages on September 26, 1994.

 

To counter these accusations with a written response is insulting and degrading.  However, to clarify the inaccuracies and incompetency of the ODE accusations, I will provide more details.

 

1.) Weekly Schedules:

 

We are required to fill out weekly schedules in an attempt to anticipate as best we can our approximate plans for the upcoming week.  These schedules often change due to cancellations or additional meetings, etc.  To be held accountable for exact times is absurd.

 

2.) Interrogation:

 

I was asked to review the weekly schedules and say whether or not I had done what was written.  I reviewed both weeks and said "Yes, I had done what was written on the schedule."

 

I was then asked to review in closer detail as best I could remember and tell exactly what times I had left and arrived at Floy's and had left the conference in Eugene.

 

The second paragraph in the Letter of Reprimand implies that I was evading the time issue.  That is completely unfounded.  I was giving approximated times, not knowing I was to be grilled for exactness.  I had not done anything wrong, and was astounded to be questioned in such a manner.  Since I have never been asked exact times before, I only gave my best estimates.

 

3.) September 22:

 

I worked until about 11:30 at ODE.  As I left ODE, I told Lorisa, "I am going to Floy's.  When I finish I will work on the Institute brochure, and on letters for the teleconference.  I'll call later."  Since it takes about an hour, I arrived at Floy Pepper's house on the north side of Portland at about 12:30 or a little after.

 

I have since spoken with Floy to try to reconstruct times, only because such an issue has been made of this.  Floy lives five minutes from the Portland Airport.  She and I agreed it was about 12:30 or so.  She and I reviewed a number of books, which she thought might have relevant information for lesson plan devel­op­ment for the American Indian Baseline essay project in Portland.  She gave me three of them to review further in detail.

 

Floy has written a letter to support that I was there about the time that I have said.

 

I then drove to the airport and checked in by phone as I said I would do.  I again re­peated that I was done at Floy's and would be completing the teleconference let­ters and revise the Institute brochure, as well as review some materials the rest of the afternoon.  As noted in the Letter of Reprimand, that call was placed about 1:35 p.m.

 

I am entitled to at least an hour lunch, and a couple of work breaks which, on this day, I had not taken at this point.  I waited for a flight leaving Portland and con­tin­ued to do the work I said I would.  The work was completed and on Lorisa's desk first thing (8:00 a.m., 9/26/94) Monday morning.  Friday had been an approved leave day by Merced.

 

Twice I said what I was going to do on the 22nd of September.  I filled out the weekly schedule, anticipating that schedule.  I did the work and have the evidence attached.  I deserve to be paid by ODE the full eight hours claimed on my time sheet.  To try to get me to change that in any way is disputing my honesty and integ­rity, and attempts to justify the unwarranted suspicion and unprofessional behavior of the staff at ODE.

 

I said what I intended to do.  I did it, and I will be paid for it.  I will not change my time sheet, and Merced should be admonished for even suggesting that I do so.

 

4.) September 26 - 17:

 

Again I was shown my weekly schedule and asked if I had done what was listed, and I said "Yes."  Then the list of phone messages taken off my phone was presented to me, showing a message (which was in error) which suggested that I was in Alaska Monday, September 26 and Tuesday, September 27th.  It was then apparent what the assumption had been by ODE all along.

 

The assumption was that I was lying about even going to the Valley River Conference at all.  This assumption was the result of invading messages left on my phone without my knowledge or permission.  The letter of reprimand said this was done on Tuesday.  Yet I tried to call in to ODE at least six (6) different times on Monday to pick up messages and check in with Lorisa.  I kept getting a message which said the extensions were "invalid."

 

Elizabeth King was my roommate September 26th.  She called in to ODE and was able to get her messages even after I told her of my difficulty.  She can also ver­ify that I was where I said I was (as can over a dozen other ODE employees, in­cluding Joanne Flint, who gave the concluding keynote at the September 27th luncheon).

 

The Letter of Reprimand neglects any mention of this line of questioning, which is the primary foundation for the whole series of accusations.

 

I found out later that Merced had called down to the conference Tuesday, 9/27/94, and sent someone to look for me throughout the workshops.  Since that person did not find me, Merced assumed I had not gone at all.

 

I attended the luncheon, visited with Armando Laquardia, packed up my car, pur­chased some materials on display, (I have receipt) and departed for Portland.  Again I did not have a lunch break since the luncheon was more presentations.  I arrived in Portland about the time I called to check in (3:49).  If a lunch hour and a break are added to that time, I am over 5:00 p.m.  Further I arrived an hour early on the 29th to set up for Diversity Workshop (John Lennsen will verify my early arrival), and stayed 45 minutes late on that day.  Since, also on September 27th, I worked on the presentations for the 29th and 30th as well, (for at least a couple more hours after 5:00 p.m.), I think it is again, at a minimum petty and at a maximum, absurd to ask me to take any time off for the week of September 26-30th.  I also worked on Diversity Workshop with Tom McKenna Sunday evening, September 25, to prepare Bingo items.

 

This whole procedure has been an insult.  It is a weak attempt to justify the in­flam­matory accusations, assumptions and unethical procedures of ODE.  I have a growing file of such behavior, and consider this harassment of the most insi­di­ous in nature.  I will not be intimidated or coerced in this manner without protest.

 

5.) Use of Phones and FAX:

 

Until the meeting with Chris Durham on September 6th, I was not aware that calls and FAXes placed by others outside ODE were also my responsibility.  This was the first clarification on this point, at which time I said I would comply as best as I could with this "new interpretation."  I have not been told this three times.

 

The memo, which is generic, does not clarify this point.  I have tried to admonish anyone who has tried to contact me at the ODE for personal work and have en­cour­aged them to contact me at home.  As I pointed out both to Chris and at "the interrogation", I am not responsible for other's actions.  To punish me for what others do is inexcusable, unfair and mean spirited.  Yet ODE has confiscated a FAX (Lincoln) withheld phone messages (10/21/94 Melora Gaber), and removed messages from message phone files.

 

All of these contacts (above) were unauthorized by me.  In fact Melora Gaber, who works for the Alaska Department of Education is not even the person who asked me to do work for them.  She had never spoken to me before, and had no idea she should not contact me at work, since I gave that directive to someone else in her agency.

 

I question the legality of this part of the reprimand.  It has the appearance of "clutching-at-straws" in an attempt to find some way to discredit my professional activities.  It is petty and unjust to punish me for other's actions, not to mention bordering on unethical itself.

 

The first paragraph on the second to last page claims I said I had no knowledge of the two out of state calls.  What I said was, "I had no way of knowing that they would call me."  This is still true.

 

I give my business cards out at authorized ODE presentations.  The Alaska work, for example, came from doing a workshop at the NWREL Spring Equity Confer­ence in Portland.  The Illinois call was a reference made by someone else who appreciates my work.

 

In conclusion, this Letter of Reprimand is completely unwarranted.  It is obviously an attempt to justify the unwarranted assumptions that I was not where I said I was on both September 22nd and September 27th.  Since I have ample proof of my whereabouts, the phone and FAX scrutiny has been added to imply impropriety.  The ODE is way out of line here.

 

I will not remove any time from my time sheet on September 22.  I will consider removing one hour on September 27, only if I can add an hour and a half for actual time worked on September 29th, and a half hour on October 30th.

 

Since I sign contracts for all work on my own time, I have all the verification I need to prove the accuracy of my private endeavors.  I can also produce letters of all witnesses to my whereabouts described in my response.  Further, I have a growing file of the scru­tiny with which all my actions are viewed.

 

The ODE owes me an apology.

The Department has paid Grievant for the questioned hours on September 22 and 27, pending the outcome of this grievance.

THE EVENTS UNDERLYING THE NOVEMBER 16 REPRIMAND

The Department's concern over the days in question began with Executive Support Specialist Lorisa Smith, who serves as secretary to Grievant's work unit.  Smith informed Flores of her concerns on September 22 and 27, and followed up a few days after September 27 with a memo commemorating the events.  The portion of her memo regarding September 22 reads, in relevant part, as follows:

I received a message logged in on my voice mail at 1:35 p.m. from Robin.  In it, she stated that she was just checking for messages and would be in her meeting with Floy Pepper for the rest of the afternoon.  She did not leave a number where she could be reached.  The Comp Ed schedule also showed her to be scheduled for a Baseline Essay meet­ing with Floy all Thursday afternoon.  However, there was clearly airport-like noise and loudspeaker announcements audible in the background of her message. ... The sig­nifi­cance of this is that it was known via a fax received in the department previously that she was to be arriving in Nebraska Thursday p.m. where she was giving a workshop for the next two days. ...

Smith testi­fied she forwarded the September 22 voice mail message to Flores because it involved a change in Grievant's written schedule.  The actual voice mail message is no longer available.  Flores tes­ti­fied the repri­mand accurately reports the message Grievant left.  He and Smith assumed Grievant would be at Pepper's house for the remainder of the afternoon.

Grievant testified she left the office at approximately 11:30 a.m. on September 22, almost an hour later than she had hoped to leave.  She went directly to Pepper's home.  By the time she finished meeting with Pepper, Pepper's house cleaner had arrived, so she left Pepper's and went to the airport, nearby, to work on the materials Pepper had given her.  She called the Department from the airport to notify Smith she had left Pepper and was working on paperwork.  She acknowledged she did not leave a number at which she could be reached.  She testified she worked at the airport until her flight left, about an hour after her call, and continued to work during the flight until well past 5:00.  She did not take a lunch break that day.  She made calls to Flores and another Department staffer over the weekend after returning from Nebraska.  She testified she included the hours she worked at the airport and on the flight in the eight hours reported for September 22; she did not count the time spent on weekend calls.

Smith's memo regarding the events of September 26 and 27 reads, in relevant part, as follows:

The Department had paid for Robin to attend a workshop in Eugene on Monday and Tuesday, 9/26 & 27, with several other ODE folks.  She was there Monday.  On Tuesday morning, I had a message on my machine from Robin that she was at the workshop, phone number 687-0123, but she would probably be hard to reach because she was in and out of workshops all day.

 

Later in the morning, the front reception switchboard asked me to clear Robin's mail box because it was full and they were having to reroute calls coming to her.  I asked Terry Nicholson to give me access to Robin's messages, and proceeded to record and clear them out of her box.  A copy of those messages is attached.

 

There was one particularly troublesome message.  It was dated 9/22 and was from a per­son (Malora Gabor) at the Alaska Department of Education, giving Robin instructions regarding her (Robin's) lodging at the Anchorage Hilton September 26-27 including in­struc­tions for late arrival on Monday and mentioned her presentation at a conference the 27th and 28th.  The phone numbers are on the attached list.  I dailed [sic] the Hilton number, asked for Robin Butterfield, was put through immediately; when there was no answer the reception desk asked if I wanted to leave a message which I declined. ...

I later called the Eugene number she had left, asking that she call me.  She did not respond to that call.

Smith testified she was concerned about the Alaska message because she had not been aware that Grievant was scheduled to be in Alaska on the dates indicated.  She typically is aware of scheduled workshops and conferences.  Also, she had previously been instructed to forward to Flores any material that came in that was not clearly related to Department business.

Flores testified he tried to call Grievant in Eugene between noon and 1:00, and learned she had checked out that morning.  He immediately checked with both the conference coordi­nator, Sara Jane Bates, and the coordinator of the Eisenhower Program, Wanda Monthley; both said they believed Grievant had left.  Bates told him the conference luncheon was still in session.  The next day, he happened to run into Monthley, who told him Grievant had left the con­ference after lunch.  Flores' file notes included the following description of his attempts to reach Grievant on September 27:

I tried myself to call Robin at the Valley River Inn (687-0123) at 1:00 p.m.  The lady at the hotel operator/receptionist had indicated that Robin had checked out and referred me to the conference registration desk.  I spoke with Sara Jane Bates and said she thought Robin had left.  I later got a voice mail on Tuesday afternoon from Joanne Flint indicating that Robin had left right after lunch.  When I spoke with Wanda Monthley on Wednesday morning, September 28, she also confirmed Robin leaving after lunch.

According to Personnel Director Linda Couoh, the Department never questioned that Grievant was actually at the Eugene conference; it was merely concerned about the time at which she left and the personal busi­ness phone messages retrieved from her voice mail during that time.  Grievant testified she was asked repeatedly, and with incredulity, whether she had been in Eugene on September 26 and 27.

Grievant testified she began her day on September 27 with a 7:30 breakfast meeting with Elizabeth King, with whom she shared a room at the Eugene conference.  She stayed through the luncheon, ending around 1 p.m.  She testified she talked to Armando Laquardia about site councils and a diversity pamphlet.  She checked out of her room, loaded her car, and went to a store at a nearby mall.  She estimated she finally left Eugene around 2:30 p.m., in time to be sure to be at the airport for her flight.  She stopped to call the office from Salem or Woodburn around 3:49.  She had ended work by then.  She had not had a lunch break that day, because the conference luncheon included presentations.  She did not come to the office because she needed to get to the airport and because she did not believe she had to come in.

Grievant testified she normally saved messages she retrieved from the field until she had a chance to return them.  Until this occasion, her voice mail box had never been full.  She testified she was sched­uled to arrive in Alaska late on the night of September 27.  After retrieving Gaber's message, she called Gaber back to correct the information regarding the date of her arrival and to request that all further calls go to her home.  All of her prior contacts regarding this engagement had been with someone other than Gaber, and had occurred at meetings and through her home telephone.  She testified she did not accept the speaking engagement in Illinois.  Until she returned the call, it was not clear whether the caller was asking her to speak, or merely asking for the name of a speaker.

Grievant testified she tried to pick up her voice mail messages several times on September 26 and 27, but kept getting a recording saying the code was invalid.  She mentioned this difficulty to King.  Ac­cord­ing to Grievant, King told her she had been able to pick up her own messages with no difficulty.^[3]

PRIOR DISCUSSIONS

On March 1, 1993, Grievant wrote a letter to then-Assistant Superintendent Jerry Fuller to respond to a discussion held on February 24.  With regard to conflict-of-interest and working hours issues, she acknowledged she may have sent out a few pieces of mail to outside clients, and offered to pay $2.90 for that; at the same time, she protested that "the two pieces given to me on 2/24/93" had never been mailed.  She argued that "The justification for suspicion is completely unfounded," and offered to respond to any other examples.  She protested any insinuation that she made a regular practice of mailing such items out.  She asserted she worked much more comp time than she claimed.  She protested the scrutiny she received on both comp time and her time sheets, as well as the "accusitory [sic] tone" used in questioning her time sheets.  She objected to being questioned about her use of the photocopying machine and asked whether others were similarly questioned.  Much of the letter dealt with other matters.  She repeatedly expressed concern that she was being subjected to disparate scrutiny of her actions.  She argued that some of the activities for which she was criticized were, in fact, part of her duties.  She noted that "The comment that I would have to be watched closely was insulting and borders on harassment ...."  She repeatedly suggested that the Department should discount criticisms received from three unnamed persons, to whom she attributed most of the questions about her conduct.

On April 22, 1993, the Department disapproved Grievant's report of a potential conflict of interest.  It concluded work she had reported for an entity called "REACH" would be in con­flict with her duties for the Department.  It therefore advised her to refrain from performing compensated services for REACH.

On June 18, 1993, Fuller met with Grievant and her shop steward.  Fuller testified this was one of several meetings regarding specific conflict-of-interest and working hours concerns.  Grievant testified Fuller asked her to write a statement to the effect that she had not used Department time, personnel, or resources for personal gain.  She responded by asking how many staff members were asked to prepare similar statements.  She recalled going over documents she had prepared and discussing how each related to her work for the Department.  Fuller followed up with a memo reading as follows:

Robin, I would like to review with you our conversation of June 18, 1993 during the meeting in my office with you and Jerry Rogers, OPEU steward.  I requested if you had utilized any staff time or Department material while conducting workshops out of Oregon for a fee that you provide a statement declaring whatever staff time or materials used in conducting these workshops.

As I recall your response was that in your mind you had not used staff or materials to do outside work.  You also stated that you resented the charges of your misuse of Department of Education resources and that you would be happy to respond to specific charges in writing and if you had inadvertently misused Department staff or materials doing work outside the state, you would be happy to reimburse the Department of Education.  Jerry Roger agreed that specific charges should be made.  I said I would get back to you on this matter.

Grievant wrote a lengthy letter on July 7, responding to this memo and other contemporaneous discussions with Fuller.  Regarding conflict-of-interest and working hours issues, she protested having been required to take vacation time for a day when she believed she had worked over eight hours.  She attributed much of the uncertainty about her schedule to a lack of performance by the secretarial staff.  She repeated many of the same points raised in her March 1 letter to Fuller.  She objected to a comment which she in­ter­preted as a threat to her job security if she con­tin­ued to represent American Indian interests in meetings.  She objected to being "managed by suspicion and innuendo."  She also discussed issues related to her budget.

Fuller testified he asked all of the staff to keep the secretaries informed of their whereabouts, particularly when the legislature was in session.  He testified he repeatedly instructed Grievant to let her secretary know where she was.  He told her she had to accurately report what she was doing and that he had to be able to reach her at all times.  Grievant testified that, in the context of the other matters at issue, she considered the issue of time sheets a minor concern.  She did not consider any of the meetings with Fuller to be a warning regarding her time sheets because, on each occasion, the specific concern raised was resolved without the issuance of any formal complaint.  In her view, a formal accusation of wrongdoing could occur only as a written reprimand or other written documentation.  She testified she has heard other EPS's criticized in recent years for doing keynote speeches, and the Department's forms have gradually begun to call for greater detail in accounting for comp time.

On September 6, 1994, Flores and Director of Management Services Chris Durham met with Grievant.  In a memo memorializing the meeting, Durham wrote that Grievant

now understands that even receiving a FAX or telephone call for personal business is in vio­lation of this law.  In the case of an incoming personal business call, [Grievant] was told to immediately inform the caller that she cannot discuss the subject on the job and to call her at home.

Flores followed up with a memorandum to Grievant on September 12, reading, in relevant part, as follows:

On Tuesday, September 6, 1994, Chris Durham and I informed you that the use of state equip­ment (fax, telephone, computer, printer, etc.), supplies and materials, and staff time (including yours and support staff) must not be used for any private or personal business purpose.  You were given a copy of Memorandum #44-1993-94, dated September 1, 1993, on this subject.  As indicated in our conversation, the use of state property and staff time for private and personal business is a violation of state ethics law.

 

In addition, the subject on the use of state equipment and staff time was presented to all Compensatory Education staff at a meeting on Tuesday, September 6, 1994.

 

Employees are prohibited from using state equipment, including incoming telephone calls and incoming fax messages for conducting any private or personal business.  It is imper­a­tive that you do not use state equipment, materials and supplies, and staff time for private or personal business purposes.

 

Should you have questions or need further clarification, please feel free to talk with me.  Thank you in advance for your cooperation.

Grievant testified this meeting was the first time she was told that receiving incoming calls and FAXes was a violation of the conflict-of-interest policy.  She expressed frustration with this directive because she often did not know until the call came in, or sometimes during the course of a conversation that also covered Department business, that her caller wanted to arrange for her private services.  She testified that, until this meeting, when such calls came in, she completed the conversation.  She now understands she is to terminate the conversation immediately and tell those callers to call her at home.

ENFORCEMENT OF CONFLICT OF INTEREST POLICIES

Couoh testified she has enforced the Department ethics policies to prohibit the distribution of catalogs and order forms for such businesses as Mary Kay and Avon to employ­ees at work.  She prevented employees from using break time to deliver Avon and Tupperware pro­ducts to employees who were not on their breaks.  She stopped an employee from using the Department's copier to run off solici­ta­tions.  When Couoh discovered an employee was receiving calls at work in response to an ad to sell his vehicle, she instructed him to terminate those calls immediately and inform the callers he would call them back on his own time.  She reprimanded an employee who used the Department's computers to enter a "get rich quick" contest on the Internet.

ENFORCEMENT OF HOURS POLICIES

According to Flores, when Grievant completes work away from the office, she is expected to re­port back to the office if there is time to do so before the end of the work day.  Travel between her Salem office and other work sites is considered work time; travel between Salem and her home in Tigard is not.

According to EPS Gloria Muniz, employees historically have been able to skip lunch and leave early without reporting that to their supervisor.  She understands she receives a one-half hour lunch; when she "flexes" her lunch, she leaves no more than half an hour early.  Flores testified he was unaware that employees "flex" their schedule in this manner.  Muniz has performed work at the airport while waiting for a flight on Department business, but not when traveling for vacation.  The Department has begun issu­ing laptop computers to some EPS's so they can work on paperwork while away from the office.

Grievant testified other EPS's do outside consulting similar to hers, but to a lesser extent.  Because of workshops she holds with teachers, her hours are more irregular than Muniz'.  She brings ma­ter­ials with her to work on when she has time.  After meetings in Portland, she often uses a spare desk there to work.  Because Pepper is old and frail, Grievant often meets with her at her home.  She testified that, on one occasion, Fuller instructed her to work at home for three days to complete a project.

Sufficient evidence exists of just cause for this reprimand.  The Department does not prohibit Grievant from using her vacation and comp time to conduct her private business.  The key is that she is not to conduct that business on the Department's time.  The issue is not her work performance or whether she completed her responsibilities.  On September 22 and 27, Grievant was not on her personal time during the hours when she was conducting her personal business.  Her schedule showed where she was sup­posed to be, and the Department expected her to be there, working for the Department.

On September 22, Grievant was at the Portland airport waiting for a flight related to her private business.  On September 27, she left the conference early and drove home to catch a flight for her private business.  She had to have known ahead of time what her schedule was in planning those flights.  That know­ledge should have been reflected in her schedules, but was not.  The Department has informed her of its expectations.  Grievant was conducting her private business on public time.  The appropriate response was a reprimand to point out the Department's expectations, where Grievant did not meet them.

The voice mail messages from out of state were left very shortly after Grievant received specific clarification that the conflict-of-interest policy applied to such calls.  The Department told Grievant in the September 6 meeting what it expected her to do when she received such calls or FAXes.  As of the October 3 meeting, she still was not complying.

Grievant has not separated her private work from her public work.  The intermingling has affected her work for the Department by requiring this proceeding.  If she had made a clean separation between the two, this hearing would not be occurring.  The Department has the right to expect its employees to perform Department work on a schedule that both the employee and the Department understand and agree to.  These were not spur of the moment schedule changes where after-the-fact notice is sufficient.

The messages taken off Grievant's voice mail raised justifiable concerns, because they were not re­lated to the Department's work.  After the fact, the confusion in dates for Grievant's Alaska trip has been ex­plained.  However, when the Department retrieved those messages, it had an obligation to find out what hap­pened.  The decision to reprimand Grievant was justified because her superiors heard nothing to miti­gate discipline.

The Union has not shown that anyone in supervision was aware of any alleged practice of hand­ling schedules as Grievant did.  Flores denies knowing of any such practice.  The practice alleged does not match the practice of which Flores was aware.

Grievant was at the airport at 1:35 on September 22, waiting for a personal flight.  The Department does not pay employees to wait for personal flights or to travel for personal business.  On September 27, Grievant called from home at 3:49 when she was supposed to be in Eugene all day.  The call demon­strated she was on her way to engage in private business.  In fact, she admits she stopped at the mall on way home, which also was not related to Department business or travel.

The Department gave Grievant sufficient warnings; she knew of the concern about separating her private work.  The record shows three circumstances where that separation did not happen.  This repri­mand concerned those instances.  The Arbitrator should sustain the reprimand.

POSITION OF THE UNION

The thrust of this lengthy reprimand is in the three alleged violations of the earlier directives.  The charge is unclear and difficult to respond to.  It appears the allegation is misuse of Department time or equip­ment.  Although the Department now says all it asks is that Grievant write a schedule reflecting what she is actually going to do, the reprimand does not talk about that.  The reprimand is for her alleged fail­ure to separate personal and private business.

The Department is aware of Grievant's private consulting business, involving activities out of state similar to what she does for the Department.  That inevitably causes fuzziness in separating her personal and public business.  The Department may or may not have the right to prohibit that conduct.  However, it has not prohibited it.  The Department can only demand reasonable efforts to achieve separation.

The reprimand is for conduct which is not in violation of reasonable expectations, and is not for just cause.  The documentation of the September 6 meeting reflects that Grievant was told that even receiv­ing a call or FAX violates the Department's policy, and was told to immediately say she could not talk at work and to call her at home.  That is a reasonable accommodation of the Department's concerns.  An employee cannot stop outsiders from making calls.  It is reasonable to ask an employee to do what she can to stop those calls, and to end any calls that turn out to be for personal business.

Grievant's handling of the calls retrieved on September 27 did not violate the directive.  The September 6 meeting anticipated any possible problem and gave Grievant latitude to deal with such calls reasonably.  However, the Department disciplined her for something she could not avoid.  The calls from Alaska came to Grievant's office as a result of a mistake by the people in Alaska.  Those calls therefore could not be a basis for discipline.

The next allegation is stealing Department time for personal business.  For years, EPS's have worked flexible hours--at night, on the road, and at times early in the day.  They are not 8-5 desk workers.  The Department has the right to expect them to put in a 40-hour week.  However, the practice of allowing them to flex schedules allows them to work in a manner that is the best use of their time.  Muniz may not return to the office after meetings, and may do her paperwork where she is.  Similarly, Grievant works in various locations.  Grievant lives in Portland.  Reasonably, the Department has permitted her to avoid driving back to Salem for a brief end of day, but to finish out her day in Portland.

Doing paperwork away from the office, on a day when Grievant was also traveling for personal busi­ness, is no different from doing it when traveling for Department business.  Given the history of employee responsibility and discretion, it was no abuse of Department time or policy to work where Grievant did, so long as she can show she spent eight hours working that day.

Grievant's comments in the October 3 meeting are irrelevant; the only question is whether her description of her activities was credible.  On September 22, she worked well over eight hours.  She worked approximately eight hours on September 27, not significantly less.  Given the history of employee discretion, her conduct was appropriate.

If the Department wishes to promulgate a rule that employees can only perform work outside the office if they are at a specific meeting, and may not do other work outside the office, it must tell employees that.  No evidence exists that such an instruction has been given.

The Department has not established that Grievant abused Department time or equipment.  The reprimand therefore was unjustified.

OPINION

PRELIMINARY MATTERS

The Department bears the burden of establishing, by clear and convincing evidence, that just cause existed for the written reprimand.  In particular, it must establish that Grievant knowingly violated Department rules or policies.

A verbally-promulgated rule or policy is as enforceable as a written one.  Verbal instruc­tions do create the risk of misunderstanding and faulty memory, particularly with the passage of time and changes in personnel.  If there is a reasonable misunder­standing of the policy, the risk must fall on the employer, which had it in its power to express its expectations clearly and completely.  At the same time, employees are responsible for acquainting themselves with the rules and policies, and seeking clar­ifi­cation if they are un­certain of their obligations.  So long as employees are on notice of an employer's expecta­tions, the employer is entitled to expect their compliance, even if employees disagree with the rules.  The Arbitrator has no jurisdiction to re-write or revoke those rules and policies.

The Department must apply its rules and policies evenhandedly--that is, it must treat similarly-situated employees the same.  A corollary of that obligation is that different policies may apply to differently-situated em­ployees.  That is significant here because Grievant acknow­ledges she probably does more outside consulting than most of her co-workers.  That difference creates more situations in which she must exercise care to avoid even the appearance of intermingling personal and business activities.

THE MERITS

The reprimand begins by discussing discrepancies in Grievant's weekly schedule, and ends by direct­ing her to correct her time sheets.  There is thus no question that the reprimand discussed concerns over the way she was reporting her activities on both types of documents.  Much of the suspi­cion arose out of the apparent discrepancies between what her weekly schedule said she would be doing and what her time sheets reflected, on the one hand, and what other information indicated she was actually doing, on the other hand.

Grievant acknowledges she had been instructed to update the secretarial staff regarding changes in her schedule, as Fuller testified.  Indeed, her July 7 letter blamed the secretarial staff for not passing on informa­tion regarding changes in her schedule.  Thus, while she might reasonably believe that minor schedule changes did not call for notice to Smith, she certainly was aware that major changes should be reported.  She did not meet this obligation on September 22.

The Arbitrator does not doubt that last-minute changes can disrupt any schedule.  However, the September 22 change cannot reasonably be called last-minute.  Grievant knew by the time she left the of­fice that morning that she was scheduled to fly to Nebraska in mid-afternoon.  Although she told Smith she would be meeting with Pepper and then working on paperwork, she omitted mention of her travel plans.  She again omitted any mention of a change in her loca­tion when she called in; only the airport noises in the background alerted Smith to this change.  On this point, it is ir­relevant whether she was doing Department work while in the airport or on the flight to Nebraska.  She knew she was to notify the Department of changes in her schedule; she neglected to do so despite two oppor­tunities.  Corrective action was thus warranted to impress on her the importance of advising the Department of changes in her schedule when she had a reasonable opportunity to do so.

EPS's' had some leeway in their work location, as required by their duties away from the office.  However, Grievant created at least the appearance of a conflict of interest by scheduling her personal business travel during the normal workday.  Arranging her schedule in this manner created the impression that she was using work time to benefit her personal business and conducting private business on work time.  On the other hand, it is undisputed that she completed Department work between the time she left Pepper's house and the following Monday morning.  Under the Department's policies, she was entitled to claim comp time for work performed outside work hours.  It would exalt form over substance to require amendment of her time sheet to claim comp time, rather than regular work time, for those hours.  However, the Department was warranted in reminding her of the need to accurately record her time.

Grievant's schedule indicated she would be at the conference in Eugene all day on September 27.  She did not notify the Department that she would not finish out that day's sessions.  On the contrary, her morning call to Smith indicated she would be in and out of workshops all day.  By her own testimony, she was unable to access voice mail (although no evidence exists that she mentioned this difficulty when she called in), and thus could not be contacted through that medium.  When she checked out, the Department lost its last means of reaching her.  Finally, her 3:49 message was the first notice the Department received of a change in her schedule.  Although that message indicated she had talked with Smith, Smith's recollection was that she never received a phone call from Grievant, despite the message Smith left at the hotel that morning.  The comment that she was going to get "on the road," coupled with other information that she had left the conference right after lunch, left the reasonable impression that she was already at home and about to embark on her personal business trip to Alaska.

The concern raised on September 27 is not whether Grievant adhered to a strict 8-5 schedule; she was not expected to do so.  Rather, the concern was with the Department's ability to contact her and to determine what she was doing, when, and where, from the information available.  As with the September 22 incident, she bypassed opportunities to update the Department on her activities.  In these circumstances, cause existed to admonish her to alert the Department to changes in her schedule.

Muniz' testimony does not establish a mutually-accepted practice of "flexing" a half-hour lunch break to the end of the day, in that she testified she did this without notifying the supervisor.  None­the­less, it is clear that EPS's had some flexibility in their hours, consistent with their work obligations and their salaried exempt status.  Even accepting Grievant's testimony that she called from the freeway rather than from home, she called over an hour before the end of the normal workday, after stopping for an un­spe­ci­fied period to shop at the mall.  Absent proof of a mutual understanding, the Arbitrator has difficulty accepting Grievant's thesis that a conference luncheon that includes presentations is not a lunch break.  In these circumstances, the Department reasonably directed her to adjust her time sheet to reflect her actual hours in work status on September 27.