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In re






Decision of Arbitrator

116 LA (BNA) 586

FMCS Case No. 00/01343


August 16, 2001



Charles W. Kohler, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service 


Statement of the Case 


 The case herein arose when a grievance was filed on October 1, 1999, following the discharge of H__, who was employed as a police officer with the City of Columbus. H__ was discharged for failing to comply with the residency requirements for police officers, and for being untruthful in an interview during the investigation of his residency. 


 Prior to the filing of the grievance, on September 28, 1999, H__ filed an appeal of his termination with the Columbus Civil Service Commission. The City of Columbus initially rejected the grievance based on the fact that the Columbus Civil Service Commission had taken jurisdiction over the matter. Under the collective bargaining agreement, a bargaining unit member who elects to pursue a matter in another forum is denied the use of the contractual grievance procedure, once that forum takes jurisdiction over the matter. However, on October 24, 1999, the parties agreed that the grievance could proceed to arbitration. The parties further agreed that, if the arbitration results in the reinstatement of H__, there shall be no award of back pay. 




 The Grievant in this matter is H__. He was employed as a police officer by the City of Columbus (“Employer” or “City”). Police officers employed by the City are represented by the Fraternal Order Police, Capitol City Lodge No. 9 (“Union” or “FOP”). 


 The City's Charter contains a residency requirement for certain employees, including police officers. The requirement is contained in Section 158-1, and has been in effect since 1971. The provision requires that affected employees: 


 shall at all times, during their employment, maintain their residence within the boundary, lines of [the] County of Franklin or within the boundary lines of the counties that border on the County of Franklin * * *.” 


 When Grievant was hired, he signed a document, dated February 10, 1990, signifying that he had read and understood the residency requirement. 


 Police officers are required by item 1.05(A)(1) of the Rules of Conduct to “Record their residence address” with the City. In early 1999, the Division of Police received information alleging that the Grievant was not living at the address he had furnished to the City as his place of residence. The information was furnished to the Department of Internal Affairs, and the matter was assigned to Sergeant David Sicilian for investigation. 


 At the time that the investigation began, the residence address furnished by Grievant was [in] 1414 New Albany, Ohio. The Segefield address is within Franklin County. Sergeant Sicilian went to this address several times in March 1999 to observe activity. He did not observe the presence of the Grievant or of his truck. 


 In March 1999, Sicilian attempted to follow the Grievant after he completed his shift and left police headquarters in downtown Columbus. On the first occasion, on March 24, Sicilian and another officer, in separate cars, followed the Grievant to rural Perry County. As he was being tailed, Grievant pulled his truck to the side of the road, as he apparently suspected that he was being followed. The two police cars then went past him and the surveillance was concluded. On March 31, Sicilian drove by the address on Hopewell Township Road in Perry County where Grievant was suspected of living, and saw the Grievant and his vehicle at the property. On several occasions in April, Sicilian drove by the Perry County property but did not observe the Grievant. On May 12, Sicilian followed Grievant from police headquarters, Sicilian lost the Grievant's truck for awhile, but later observed him pull his truck into the garage at the same property in Perry County where he had been observed on March 31. On May 13, Grievant was followed in a police helicopter. He was seen going to the same Perry County property. On May 14 and 19, Sicilian followed Grievant from police headquarters to the Perry County property. Perry County is not contiguous to Franklin County. 


 The property that Grievant traveled to was located [in] Thornville, Ohio. In 1996, Grievant purchased six acres of vacant land at that location. After purchasing the property, Grievant constructed a house, which was completed in October 1996. Grievant estimates that the value of the property is approximately $150,000.


 On May 20, 1999, Sicilian went to [the] New Albany, Ohio [address], which Grievant had indicated was his principal residence. This address was in a condominium development. Sicilian interviewed the occupant, who identified herself as M__. M__ is Grievant's mother-in-law. She consented to give a tape-recorded statement to Sicilian. During the interview, M__ stated that she was the owner and sole occupant of the condominium, which she had purchased in November 1995. M__ denied that the Grievant lived there. S he stated that her daughter, N__, resided at the property until N__ married the Grievant in October of 1997. When asked by Sicilian, M__ indicated that she was aware that the Grievant sometimes used her address as a mailing address. She also told Sicilian that the Grievant had not visited her residence for about two months. 


 In addition to the surveillance and the interview with M__, Sicilian obtained several documents in which either the Grievant, or his wife, indicated that they resided in Perry County. Sicilian also interviewed several persons who were present at houses near the property. In a letter, dated May 5, 1999, to the Columbus Civil Service Commission (“Commission”), Sicilian concluded that there was “clear and convincing evidence” showing that the Grievant was residing in Perry County, in violation of the City Charter. 


 On June 8, 1999, the Commission notified the Grievant that a residency hearing would be held on June 17, 1999. He was advised to bring documentation to the hearing to show that he was in compliance with the residency requirement in the City Charter. The Commission requested that Grievant provide a deed or a lease showing residency, in addition to other documents. The Commission also requested that the deed or lease have a notarized statement attesting that the property is the principal residence of the employee. Grievant failed to comply with the requests, as he did not submit either a deed or a lease. Following the hearing, which was actually held on July 22, 1999, the Commission agreed to allow the Grievant an additional 30 days after the hearing to submit proper documentation of his residence. Grievant failed to submit satisfactory documentation within the specified time period. On August 30, 1999, the Commission determined that the Grievant did not meet the residency requirement, and would be removed from the payroll as of October 7, 1999. 


 On September 15, 1999, a hearing was held in regard to the charges against the Grievant. The hearing was conducted under the authority of the office of the Director of Public Safety. The director, Thomas Rice, was not present at the hearing. E. Gayle Saunders, Deputy Director of Public Safety, conducted the hearing. The record of the hearing indicates the subject of the hearing was the following charges and specifications, dated August 20, 1999: 


 Charge I : You are hereby charged with violating Rule 1.05(A) 1, which reads in part, “Division personnel are to: Reside in Franklin, Union, Delware (sic), Licking, Madison, Fairfield, or Pickaway county.” 


 Specification I : On or about October of 1997 to May 1999 you did reside [in] at Thornville, Ohio 43076 in Perry County. 


 Charge II : You are hereby charged with violating Rule of Conduct 1.15(A) 5, which reads in part, “Division personnel are to: Be truthful at all times.” 


 Specification I (sic): On or about May 25, 1999 you were untruthful to Sergeant David Sicilian II #5182 and Sergeant Steven Hope #5257 during a Internal Affairs interview. You stated that you did not reside [in] Thornville, Ohio 43076 in Perry County. 


 On September 20, 1999, the Grievant was informed that it was the decision of Director Rice that he be terminated. On October 1, 1999, the Union filed a grievance on behalf of Grievant. The grievance alleged that the termination was not for just cause as is required by the collective bargaining agreement. As stated above, both parties agreed that the matter of the Grievant's termination is properly before the Arbitrator for a final and binding decision. 




 The issue before the Arbitrator is as follows: 


 Did the City of Columbus have just cause to discharge the Grievant, H__? If not, what shall the remedy be? 


 Relevant Provisions of the Labor Agreement 




 * * *


 8.10 Admissibility of Evidence . Any evidence obtained in the course of an investigation through the use of administrative pressures, threats, lies, coercion or promises shall not be admissible in any subsequent criminal action or departmental hearing. 




 10.1 Collective/Disciplinary Action for Cause . No bargaining unit member shall be removed, reduced in pay or position, suspended, required to forfeit accrued leave (excluding sick leave), given documented constructive counseling or a written reprimand, or suffer any career disadvantage except for just cause. 




 * * *  


 12.7 Grievance Procedure . The following are the implementation steps and procedures for handling grievances: 


 * * *  


 (F) Step Five — Arbitration . 


 * * *  


 (3) Authority of Arbitrator. The Arbitrator shall conduct a fair and impartial hearing on the grievance, hearing and recording testimony from both parties and applying the rules of the FMCS. The Arbitrator shall have no authority to add to, detract from, or modify or otherwise change any of the terms or provisions of this Contract. The decision of the Arbitrator shall be final and binding on all parties. 


Summary of the Positions of the Parties


 Position of the Union 


 The Union does not deny that the Grievant owned property in Perry County on which he built a house. It alleges, however, that the Grievant only used the house as a second home, rather than as his primary residence. The Union contends that, at the time of the internal affairs investigation, the Grievant and his wife both lived in Franklin County with M__, Grievant's mother-in-law. The Union notes that the City has no rule which prevents a police officer from maintaining a second home outside of Franklin or a contiguous county. 


 The Union asserts that the investigation by Sergeant Sicilian was flawed. The Union takes issue with the conclusion of Sicilian that the Perry County property was the primary residence of the Grievant. The Union contends that it is inconsequential that Grievant drove to the property after work on the occasions when he was followed by Sicilian. Grievant had the right to go to his second home whenever he desired. During the time of the investigation, the Union states that the Grievant was at his property more frequently than normal because he was building a fence around the property. 


 The Union contends that Sergeant Sicilian obtained the tape-recorded statement of M__ through surprise and intimidation. The Union contends that the City has misconstrued the contents of the interview. It states that although M__ mistakenly told Sicilian that Grievant did not reside with her, her statement can be explained by the fact that the Grievant was spending more time than normal in Perry County because his mother was temporarily staying at his Perry County house. The FOP notes that M__ testified under oath at the Commission hearing that Grievant and his wife were living with her, and had lived with her since October 1997. 


 The Union contends that the Grievant submitted most of the necessary documents at the Civil Service Commission hearing of July 22, 1999. The FOP notes that the Grievant submitted his driver's license, car registration, tax returns, medical bills, and bank statements. The Union states that all of these documents show that the Grievant resided in Franklin County. The Union asserts that the Grievant was unable to present a deed or lease because he lived in his mother-in-law's home, and did not have a lease. Further, the Union points out that the Grievant and his wife did sign a lease with M__ after the Commission hearing. The lease was submitted to the Commission on September 7, 1999, but the Grievant was terminated by Thomas Rice, Director of Public Safety, before the Commission could consider the lease. 


 The FOP contends that the evidence against Grievant was obtained through deceit, and in violation of the collective bargaining agreement, which prohibits the use of “threats, lies, coercion or promises.” The Union also contends that Rice terminated the Grievant without completely reflecting on the evidence. It notes that the Director was not in attendance at the hearing concerning the charges filed against the Grievant, and that he made the decision the day after the hearing. 


 The FOP also takes issue with the charge that the Grievant was untruthful during the investigation. This charge is solely based upon the assertion of the Grievant that his primary residence was not in Perry County. Grievant was truthful when he answered questions concerning any relevant facts. He merely disputed the charges against him. Thus, the Union contends that the charge of untruthfulness should not be considered as an independent basis for discipline. 


Position of the City 


 The City contends that this is simply a case where an employee failed to comply with the City Charter. Since the Grievant did not have his principal residence in either Franklin County or a contiguous county, he did not meet the mandatory residency requirement, and was, therefore, properly terminated. 


 The City points out that, during her initial police interview, Grievant's mother-in-law clearly and unequivocally stated that the Grievant did not live with her. The City asserts that there is no evidence that M__ was intimidated, confused or surprised by the interview. The City contends that the tape recording of M__'s interview demonstrates that she was speaking freely. 


 The City argues that there is abundant evidence showing that the Grievant had his principal residence in Perry County. The surveillance by Sergeant Sicilian shows that the Grievant often went to his Perry County residence after work. In addition, the Grievant was never observed at his mother-in-law's residence. The City points out that several neighbors in Perry County believe that Grievant lived there, and that Grievant kept a number of live animals on the premises, which is an indication of continuous occupancy. The City also notes that the Perry County address was used on an automobile lease application, marriage license, and on an employment application completed by Grievant's wife. 


 The City asserts that the testimony of the Grievant and his wife is lacking in credibility. The City asserts it is simply not believable that the Grievant would not know that a corporation owned by his wife now owns the Perry County property. The City also points out that the Union did not have M__ testify at the arbitration hearing. 


 The City contends that termination was an appropriate action to take considering the fact that the Grievant was unable to show that he was in compliance with the residency provision of the City Charter. In addition, the City asserts that the evidence clearly shows that the Grievant was untruthful during the internal affairs investigation of his residency. 


Discussion and Conclusions 


 The Union does not challenge the right of the City to require some employees, including police officers, to live in Franklin County or in a contiguous county. Thus, the appropriateness of the residency requirement need not be discussed herein. The issue concerns whether or not Grievant maintained his principal residence within the area required by the City Charter. The Union contends that Grievant complied with the charter provision, while the City contends that Grievant failed to comply. For the reasons stated below, the Arbitrator finds that the weight of the evidence warrants the conclusion that the Grievant violated the residency requirement. 


 It is undisputed that ownership of property, including a house, outside of the designated residency area does not violate the City's residency requirement. The issue of secondary residences is not addressed in either the City Charter or the regulations of the Division of Police. The City does not contend that employees are prohibited from maintaining more than one residence. 


 The situation herein is that Grievant owned a relatively new $150,000 house with extensive property outside of the mandatory residency area, but within a reasonable commuting distance of Columbus. However, he maintains that his primary residence is a condominium that he and his wife share with his mother-in-law. The fact that he owned a home in Perry County, but owned no home in the mandatory residency area, raises some suspicions as to the actual residency of the Grievant. Under these circumstances, it was reasonable for the City to investigate the living arrangements of the Grievant. During the period of the investigation, Grievant was observed driving to his Perry County property after finishing work. The interview with M__ was conducted only after the investigation disclosed the Grievant's pattern of going from work to his Perry County property, instead of the location reported by the Grievant as his residence. 


  Clearly, the surveillance evidence is not conclusive. Grievant was observed at the Perry County property only five or six times over a period of almost three months. Standing alone, these observations do not prove that Grievant lived in Perry County. However, other evidence obtained during the internal affairs investigation is more significant. The interview with M__ is the strongest evidence of the Grievant's living arrangements. The fact that the Grievant and his wife used the Perry County address on numerous documents is also persuasive. 


 A recording of the M__ interview was played at the arbitration hearing and a copy of the tape was admitted into evidence. M__ was interviewed at her condominium in New Albany, which is in Franklin County. She was told that the interview was being conducted as part of an internal affairs investigation concerning Grievant. She stated that she was aware that the interview was being taped and that she was speaking freely and voluntarily. Contrary to the assertion of the Union, there is nothing on the tape that would indicate that M__ was intimidated, or was coerced. During the interview, she unequivocally stated that Grievant does not reside with her. She stated that Grievant lives with her daughter in Perry County. Further, she stated that the telephone number she uses to call them is the number assigned to the Perry County residence. M__ was asked directly about the living arrangement at her residence, and about the residence of the Grievant. She answered in the following manner: 


 Q. [by Sicilian] Do you reside at this address? 


 A. [by M__] Yes. 


 Q. Who else resides at the address with you? 


 A. No one. 


 Q. Do you rent the residence out to anyone? 


 A. No. 


 Q. Are you the only one who receives mail at this location? 


 A. No. 


 Q. And who else receives mail here? 


 A. H__. 


 * * *  


 Q. Does H__ reside at this address? 


 A. No. 


 Q. Does N__ reside at this address? 


 A. No. 


 Q. According to the investigation that we have concluded with respect to Officer H__, there's an indication that he lives in Perry County. To the best of your knowledge is that where H__ resides? 


 A. Yes. 


 While Sicilian asked M__ some leading questions, there is no indication that he attempted to coerce or deceive her. At the end of interview, M__ stated that she knew that Grievant used her address as a mailing address with the Columbus Police Department. Near the end of the interview, she apparently began to realize the reason for the questions. At that point, Sicilian permitted M__ to refrain from responding to questions that she did not wish to answer. However, even after she realized the possible impact of the interview, she told Sicilian that Grievant had not been to her residence in over two months. 


 M__ also testified at the Commission hearing on July 22, 1999. Her testimony at that time contradicted information she had given during the May 20, 1999, interview. At the Commission hearing, she testified that Grievant currently resided with her and had been residing there since October of 1997. She testified that Grievant and his wife (M__'s daughter) lived there rent-free, and stayed in the lower level. She attempted to explain the inconsistency in her statements by asserting that she thought Sicilian was investigating an incident that had occurred the previous evening involving a grandchild and the Columbus Police Department. 


 M__'s assertion that she was mistaken as to the purpose of Sicilian's interview lacks credibility. Sicilian told her at the beginning of the interview that she was being interviewed in reference to the Grievant. The questions had absolutely nothing to do with an incident involving her grandchild. M__ never referred to her grandchild during the interview. 


 The most logical explanation for the change in her statement was that she was attempting to help out her son-in-law by testifying falsely at the Commission hearing. By the time of the hearing, she was fully aware of the consequences of her earlier interview. She knew that if she testified that Grievant did not live with her, he would lose his job as a police officer.


Her statements during the interview with Sicilian, made before she was aware of the consequences, are more worthy of belief. 


 The City presented evidence showing that Grievant's future wife, N__ listed the [Perry County] address as her address on a marriage license application on September 8, 1997. On an application for an automobile lease, dated August 16, 1997, Grievant and his future wife both listed [the Perry County address] as their residence address. On the lease application, both of them signed the application certifying that the information on the application was true. At the hearing, N__ attempted to justify the use of the address by stating that she wanted to receive her lease statements there in order to ensure that she could make timely payments. However, if she only used the [Perry County] property as a secondary residence, it makes little sense to have statements sent there. 


 This case must be decided based on credibility. Grievant actions after he found out that the City was investigating his residency cast considerable doubt on his credibility. Following the receipt of the notice that the Commission was examining his residency, he arranged for the sale of the Perry County property. Grievant testified that he sold the property because of the problems he was having with the City regarding the residency requirement. A purchase agreement, dated July 10, 1999, was entered into between the Grievant and his wife, as sellers, and S__, as the buyer of the property. Records of the Perry County Auditor show that the property was transferred from Grievant to S__ on July 22, 1999. The records show that when S__ owned the property, the tax mailing address was: H__, Thornville, Ohio. 


 The records also show that, on December 30, 1999, the property was transferred to M__. On July 12, 2000, the property was transferred to Somerset Land Corporation, which is a corporation owned and/or controlled by N__, Grievant's spouse. As of July 18, 2000, the mailing address of Somerset Land Corporation was [in] Thornville, Ohio. In his testimony, Grievant stated that he was employed by Somerset Land Corporation as a property manager. He also testified that he had no knowledge that the corporation had acquired the property. This assertion is not worthy of belief, considering the fact that Grievant is married to the individual controlling the corporation, and that the Grievant previously owned the property. 


 On September 7, 1999, the Grievant submitted a copy of a document purporting to be a lease of [the property in] New Albany, Ohio. The lessees are Grievant and his wife, and the lesser is M__. The document is dated August 30, 1999. Grievant admits that he entered into the lease solely for the purpose of satisfying a requirement of the Commission. However, the Grievant was clearly informed by the Commission that a deed or lease must include a notarized statement affirming that the property described in the deed or lease is the principal residence of the employee. No such statement was submitted by the Grievant. Thus, even if the Commission had reconsidered the issue of Grievant's residency, it is unlikely that the reconsideration would have resulted in a different conclusion. 


 Additionally, Grievant has long contended that he paid no rent to live in his mother-in-law's condominium. At the Commission hearing, M__ testified that Grievant and his wife did not pay any rent. These representations of Grievant and M__ conflict with the terms of the lease that require rent of $300.00 per month. Given the Grievant's failure to submit a notarized statement, and the conflict between the terms of the lease and the representations of Grievant and his mother-in-law, the lease has little probative value. 


 The collective bargaining agreement prohibits the use of “threats, lies, coercion or promises” in an internal affairs investigation. The FOP correctly points out that Sicilian posed as the Grievant to obtain verification that Grievant contracted for utility services for the Perry County property. Arguably, this information was obtained through the use of lies. However, the information obtained was not material. The establishment of utility service is consistent with Grievant's assertion that he used the property as a second home. 


 The procedure used in the Director's hearing did not violate Grievant's due process. There is no evidence that the Director himself is required to be at the hearing. In addition, making a prompt decision is not an indication that he failed to fully consider all of the evidence. 


 Grievant's use of the New Albany address for such purposes as banking and motor vehicle registration does not constitute sufficient evidence of residency in comparison to the abundance of evidence indicating that Grievant's primary residence was outside of the mandatory residency area. The evidence does not show that the investigation was unfair or prejudicial the Grievant. Grievant had ample opportunity to refute the allegations made against him. 


 The Arbitrator must conclude that the Grievant did not meet the residency requirement established by the City. His discharge was for just cause and did not violate the collective bargaining agreement. 


 The Arbitrator also finds that the City did not meet its burden of proof in showing that Grievant was untruthful during an internal affairs interview on or about May 25, 1999. While the Arbitrator questions the overall credibility of the Grievant, the allegation by the City is based on a specific interview. The City had the burden of proving that he knowingly made a false statement during an internal affairs interview on or about May 25, 1999. There is insufficient evidence to show that Grievant was untruthful during the interview. 


 The grievance must be partially sustained. 




 The grievance is partially sustained. Grievant was terminated by the City of Columbus for just cause because he did not comply with the mandatory residency requirement for police officers. The City of Columbus failed to prove that Grievant was untruthful during an internal affairs investigation on or about May 25, 1999. The charge of untruthfulness must be expunged from Grievant's personnel records. 



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