City of Houston
"J" Individual Grievant
117 LA (BNA) 408
AAA Case No. 70-390-00017-02
June 18, 2002
Harold E. Moore, Arbitrator.
Was Police Officer J__ indefinitely suspended for just cause? If he was not, what is the appropriate remedy?
Police Officer J__, hereinafter referred to as Appellant, was indefinitely suspended, which is tantamount to termination, from the Houston Police Department on January 9, 2002. He is charged with violation of Rule 13, Section 6, Subsections (d) and (o) of the City of Houston Civil Service Commission's Rules Governing Member of the Fire and Police Departments. These rules pertain to violating special orders of the Fire and Police Department and conduct prejudicial to good order of the Departments. Specifically he is charged with violating:
Employees' behavior will be limited to conduct which is reasonable and prudent. No employee will commit any act on-duty or off-duty in an official or private capacity which tends to bring reproach, or embarrassment to the department. Employees are expected to exercise sound judgment at all times.
General Order 200-08, Conduct and Authority: Performance of Duty:
Attention to Duty. Employees will be attentive to their duties at all times. Employees will perform all duties assigned to them.
The precipitating incident leading to the termination occurred on August 23, 2001. The Appellant was driving on a Houston City street in a police vehicle. At an intersection, after having waited, he made a left hand turn across a lane of oncoming traffic and struck the left rear panel of a truck that had stopped. It was determined that the Appellant was at fault. By the accident investigator's estimate the damage to the Police vehicle was less than $500.00. During the six years the Appellant has been employed as a Houston Police Officer he has been involved in six other automobile accidents while on duty. It was determined that he was “at fault” in all seven of the traffic accidents.
The Appellant possesses a Texas Driver's License and passed driver skills at the Houston Police Academy when he was a cadet. After each of his first six traffic accidents he received a driver's safety training course. Six months prior to the seventh traffic accident the Appellant successfully completed a retraining driving course.
The Appellant's employment record reflects that he has been the subject of twelve disciplinary actions; resulting in 93 days of suspension during the six years he had been employed as a Houston Police Officer. In addition, at the time of his indefinite suspension he was working under a Confidential Last Chance Agreement in connection with a previously agreed to forty-five (45) day suspension he received on February 16, 1999, in lieu of an indefinite suspension at that time. According to the terms of the Last Chance Agreement, any sustained violation of a City or department policy or procedure, no matter how minor, would result in his termination.
The City's main argument is that the Appellant has demonstrated that he is unfit to serve as a Police Officer. They point out that the ability to drive a police vehicle safely is an essential skill for a Police Officer. They emphasize that in the five years and eight months tenure with the Houston Police Department, the Appellant caused seven traffic accidents while he was on duty and driving in a police vehicle. They also emphasize that the Appellant was at fault in each of these accidents.
The City asserts that the Appellant had been afforded more than the average drivers training most Police Officers receive. They point to the fact that the Appellant was given retraining and safety courses after six of the accidents. They argue that the City has invested an enormous amount of time and money in retraining the Appellant. They point to the fact that the Appellant was placed in the Personnel Concerns Program for over six months, an intensive program in which supervisors invest an enormous amount of time in an officer, overseeing each and every assignment that an officer completes.
The City contends that the Appellant was working under a last chance agreement as the result of another incident. The Last Chance Agreement provided that the Appellant agreed that he could be terminated if he violated any City policy or procedure.
The City submits that the Appellant's driving record could be used against the City if he were to be involved in a traffic accident where a citizen is injured. Under the Texas Tort Claims Act the City could be subjected to a two hundred fifty thousand dollar liability.
For those reasons the City argues that the Appellant's appeal be denied, that the Appellant take nothing, that the Appellant's indefinite suspension be upheld, and that the contents of the Appellant's personnel file remain intact.
The Appellant suggests that he has had a string of bad luck with regard to traffic accidents in police patrol vehicles. Arbitration is a trial de novo before an arbitrator who is not burdened with any political or social agenda, as understandably may be the case with the department head or an accident review board made up of officers in the police department. An arbitrator has the authority to interpret the rules that are before him in evidence and apply them to the facts of the case. The City has the burden of proving that the application of those rules was done in a just manner in order for the discipline imposed to be upheld in whole.
The Appellant argues that the negative aspects are not the only evidence of his career record with the Police Department. It is pointed out on his behalf that his Employee Resume rated him as a strong employee; the next to the highest rating an officer can receive. His supervisor noted that he was a good officer who did everything asked of him without the negative reaction that was common among other officers. It was also pointed out that the Appellant would volunteer for additional assignments and he received six commendations during his tenure with the Police Department. A fellow officer testified that the Appellant was a good officer who took care of business. A City Councilperson, who has known the Appellant for a long time, testified that her knowledge of his past discipline does not change her opinion that he could be a good Police Officer.
The Appellant emphasizes that he completed the Personnel Concerns Program and the positive results of the past disciplinary action should be taken into consideration. Further, the Appellant emphasizes that the recommendations of the Accident Review Board regarding the Appellant's earlier traffic accidents that he should be assigned to a non-driving job were ignored. It is speculated that the Chief of Police was not going to follow their recommendations and therefore recommended the indefinite suspension for the seventh traffic accident. The Appellant argues that if the Chief of Police followed the recommendations of the Accident Review Board in earlier traffic accidents, there would not have been an opportunity for the final recommendation of indefinite suspension.
The Appellant concludes his argument by asserting that the City failed to prove that the Appellant did not exercise sound judgment, caused embarrassment to the Police Department, or that he was not attentive to his duties. Therefore, the indefinite suspension should be overturned, and the arbitrator should substitute an appropriate amount of discipline consistent with the evidence and made whole for the days suspended over and above the arbitrator's decision as to the appropriate amount of discipline.
Although the parties spent a considerable amount of time during the hearing and in their excellent post hearing briefs and post hearing rebuttal briefs addressing the arbitrators authority or jurisdiction to fashion a remedy in the event the decision is to reinstate the Appellant, the initial issue to be answered is whether the City had just cause to indefinitely suspend the Appellant. If that question is answered in the affirmative, the fashioning of a remedy issue is rendered moot.
The Appellant appears to be an articulate and personable individual that would be a credit to the Houston, Texas Police Department. He has the support of his parents, who sat through the two days of the hearing, fellow Police Officers, a City Councilperson, and members of his church. He expressed that his career goal was to be a Houston, Texas Police Officer. The evidence and testimony reflect that the Chief of Police provided the Appellant the opportunity for the Appellant to achieve his career goal.
The record reflects and the Appellant admitted that he was involved in seven (7) traffic accidents within a six-year period. He admitted he was at fault in all of the traffic accidents. He was on duty and operating a Police vehicle in all seven (7) of the traffic accidents. Granted, Houston Texas is one of our nation's largest cities with the accompanying traffic congestion. However, it is not subject to the wintertime inclement weather that is found in many cities. Hazardous driving conditions could be a mitigating factor when evaluating an individual's driving record, but that is not the case here.
General Order 200-08 limits Police Officers to conduct which is reasonable, prudent and prohibits employees from committing acts that tend to bring reproach or embarrassment to the Police Department. The arbitrator was not furnished definitions for the terms reasonable, prudent, reproach, or embarrassment. But using the generally accepted dictionary meaning of the terms, seven (7) at fault traffic accidents in less than six (6) years is not reasonable or prudent and subjects the City to reproach and embarrassment. Further, the Appellant was provided safety training after six of the traffic accidents. Under controlled conditions he was able to pass driving tests. However, when he was required to utilize his training he failed.
Safely driving a Police car is an essential prerequisite for a Police Officer in Houston, Texas. The Appellant has demonstrated that he does not possess the skill of being able to drive a Police patrol car safely.
The Appellant's counsel skillfully argues that there are non-driving jobs that the Appellant could perform. That may be true. But, many would view the assigning of an individual who has demonstrated incompetence, or who could not perform an essential element of being a police office as rewarding that individual or giving him special treatment. In addition to the Appellant's propensity to be involved in traffic accidents, his past disciplinary record, which resulted in 93 days of suspension in less than six years, along with his Last Chance Agreement in lieu of a previous indefinite suspension, does not warrant mitigation of his actions.
In light of the discussion above and the award set forth below it is not necessary for the arbitrator to rule on the question as to whether a hearing examiner has the jurisdiction to grant the relief requested by the Appellant, that he be returned to a non-driving job.
The Appellant violated General Order 200-08 and therefore violated Rule 13, Section 6, Subsections (d) and (o) of the City of Houston Civil Service Commission's Rules Governing Members of the Fire and Police Departments. The Appellant was indefinitely suspended for just cause. Appeal denied.