City of Columbus, Ohio
Capital City Lodge No. 9
116 LA (BNA) 1672
FMCS Case No. 01/07379
February 5, 2002
James C. Duff, Arbitrator*
*Selected by parties through procedures of the Federal Mediation and Conciliation Service
A document introduced at the Arbitration Hearing is reproduced here for convenience in order to outline the claim under review in this forum as follows:
DIVISION OF POLICE
December 11, 2000
TO: Deputy Chief Robert R. Kern #5002 Patrol West Subdivision
FROM: Sergeant David A. Sicilian II #5182 Accident Investigation Unit
SUBJECT: Off-Duty Employment
I, hereby, am requesting approval to engage in off-duty employment. This will be an annual request commencing January 1, 2001 through December 31, 2001.
The nature of this employment consists of functioning in the capacity of a private investigator in my own private business. It is independent of police authority and my current position with the Division of Police. I will be performing these duties under a professional license pursuant to O.R.C. Section 4749.
I will abide by the applicable guidelines contained in Division Directive 3.17. This Off-Duty employment will not conflict with the duties of my current position within the Division of Police.
/s/ Sergeant Daniel A. Sicilian II #5182
Accident Investigation Unit
Relevant Portions of the Collective Bargaining Agreement
ARTICLE 2 AGREEMENT
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2.7 Past Benefits and Practices
(A) The City agrees to continue all existing practices and benefits during the term of this Contract. The Chief of Police shall determine all past practices and benefits; however, if the Lodge disagrees as to whether a past practice or benefit does exist, the parties will first attempt to resolve the problem through the Labor Relations Committee process. Failing to reach an agreement in the Labor Relations process, the Lodge may file a grievance over the matter and take the question through the grievance procedure for a final and binding decision by an arbitrator as to whether or not a past practice or benefit exists.
ARTICLE 7 MANAGEMENT RIGHTS
7.1 Management Rights. Except to the extent otherwise limited or modified by this Contract, the City retains the right and responsibility, regardless of the frequency of exercise, to operate and manage its affairs in each and every respect. These rights and responsibilities shall include, but are not limited to:
(A) to determine the organization of the Division of Police;
(B) to determine and change the purpose and extent of each of its constituent subdivisions;
(C) to exercise control and discretion over the organization and efficiency of operations of the Division of Police;
(D) to set standards for service to be offered to the public;
(E) to direct the officers of the Division of Police, including the right to assign work and overtime;
(F) to hire, examine, promote, train, transfer, assign and schedule officers in positions with the Division of Police;
(G) to suspend, demote, discharge, or take other disciplinary action against officers for proper cause;
(H) to increase, reduce or change, modify or alter the composition and size of the work force;
(I) to determine the location, methods, means and sworn personnel by which operations are to be conducted;
(J) to change or eliminate existing methods of operation, equipment, or facilities;
(K) to create, modify or delete departmental rules and regulations;
(L) to take actions as may be necessary to carry out the mission of the Division of Police in emergencies;
(M) to train or re-train officers as appropriate;
(N) to maintain and improve the efficiency of the Division of Police; and
(O) to specify and determine where, when, and how officers will use tools, vehicles, supplies, equipment, uniform clothing and protective gear.
These inherent managerial functions, prerogatives, and policy-making rights, whether listed above or not, which the City has modified or restricted by a specific provision of this Contract are subject to the Grievance Procedure contained herein.
ARTICLE 12 GRIEVANCE PROCEDURE
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12.7 Grievance Procedure. . . .
(F) Step Five—Arbitration.
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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, 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.
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The above-quoted request for approval to engage in off-duty employment was denied by the City of Columbus Division of Police. The propriety of that denial is under challenge via this arbitration and it is necessary to reference certain of the Division's “Directives” in order to review this matter. Germane portions of such Directives are accordingly copied here as follows:
Columbus Police Effective Revised Total Pages
Division Directive Aug. 1, 1987 Jan. 15, 2000 10
Rules of Conduct
1.01 Obedience to Laws and Ordinances
Division personnel are to obey the Constitutions of the United States and the State of Ohio and all federal, state, and local laws.
1.02 Knowledge of Directives, Laws, and Ordinances
Division personnel are to be thoroughly familiar with Division rules, policies, directives, orders, and city, state, and federal laws that pertain to their employment.
1.03 Violation of Rules or Division Directives
A. Division personnel are not to commit or omit acts in violation of the explicit or implicit purpose of the Rules of Conduct, Policies, Directives, or orders of the Division. It is not necessary that every specific act which would constitute a violation be expressly prohibited in written form.
B. The Rules of Conduct are the most authoritative directives issued and will be the basis for formal disciplinary action.
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1.27 Interference in Private Business
Division personnel are not to interfere in the private business or affairs of another, other than in the course of official police business.
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Columbus Police Effective Revised Total Pages
Division Directive Aug. 1, 1987 Jan. 25, 2001 10
Cross Reference: ... ...1.42, 2,08, 2.14, 3.09
In order to avoid any real or perceived conflict of interest due to an individual's employment with the Division of Police, secondary employment regulations must be established. These regulations are designed to protect both the Division and its personnel.
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C. Secondary Employment
1. Any work done in return for wages or anything of value, in the form of self-employment or with an agency other than the Division of Police. This includes any business, corporate interest, or partnership that results in a financial benefit to the involved individual. Secondary employment is divided into two types:
a. Special Duty
Uniformed or plainclothed employment evolving directly from the authority granted to an individual by virtue of being a sworn law enforcement officer with the Division of Police.
Any employment or business interest that is independent of police authority.
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III. Policy Statements
1. Division personnel will be permitted to engage in secondary employment as long as no conflict exists between the secondary employment and the individual's employment with the Division, unless prohibited by Division Rules, Policies, Directives, or orders.
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3. Prior permission to engage in secondary employment is required.
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12. Personnel engaged in special duty work are subject to Division Rules, Policies, Directives, and orders. All lawful orders or directions issued by a Division of Police supervisor are to be obeyed even though a conflict of duties may arise involving the person or company employing the special duty officer.
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14. On duty personnel are not permitted to request, review, search, copy, remove, or forward any information from any record, report, or file in connection with any special duty work.
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Inasmuch as similar requests to engage in secondary employment had formerly been granted by the Columbus Division of Police, Sergeant Sicilian and the Fraternal Order of
Police Capital City Lodge No. 9 chose to contest this denial through this arbitration.
The Fraternal Order of Police Capital City Lodge No. 9 insists that denial of Sergeant Sicilian's request was an improper exercise of discretion by the Division of Police because his request presented no genuine conflict with his regular duties as a Police Officer and that the nature of the employment he sought would not necessarily interfere with any private business or affairs. It accordingly urges the undersigned impartial Arbitrator to direct the City to make Sergeant Sicilian whole for any loss he has improperly sustained and prospectively grant secondary employment requests as it had in the past without undue restrictions.
The Columbus Division of Police asserts that its Chief had ample legitimate rationale for denying Sergeant Sicilian's request and prohibiting private investigation work by its Police Officers. It submits that the nature of private investigation work is replete with the possibility of conflicts of interests for City Police Officers and potential appearance of impropriety. It believes that it has exercised unfettered discretion regarding such matters in the past and retains the latitude to do so now and in the future. The City therefore requests that the grievance be denied.
It is important to note at the outset here that the City has agreed to continue all practices and benefits during the term of the current Collective Bargaining Agreement. However, it has also expressly retained the right and responsibility, regardless of the frequency of exercise, to operate and manage its affairs in each and every respect. Obviously, individual factual scenarios can generate tension between these divergent contractual provisions which are respectively set forth in Articles 2 and 7 of this Labor Agreement.
The City's “inherent managerial functions, prerogatives, and policy-making rights” are expressly made “subject to the Grievance Procedure...”. The Columbus Division of Police Chief, James Jackson, testified that with respect to the City's concerns and the interests of the citizens, “Rule 1.27 supersedes.” That rule is copied above and it nominally proscribes any “interference in Private Business.” So far as the available information indicates, however, that rule has not been invoked so as to preclude the kind of off-duty employment Sergeant Sicilian sought to engage in, at least in blanket fashion. Quite on the contrary, both he and other Officers have received prior permission to engage in private investigations as secondary employment.
So long as Officers so engaged have not performed law enforcement functions or attempted to or actually encroached upon private rights by using their police authority in any fashion, they have been permitted to do private investigation work. Sergeant Sicilian has been permitted to do this work in the past and there is no suggestion on record that he somehow abused that privilege in any respect, put himself or the City in any conflict of interest situation, or improperly interfered with the interests of any private business or affairs whatsoever. The mandates upon which the City relies here are utterly inapplicable to the facts and no blanket denial of permission was warranted based upon anything the Chief imagined as a potential problem.
Sergeant Sicilian and other Police Officers who seek to engage in private investigation work must, of course, ever be vigilant that their activities pose no genuine conflict of interest with their duties or even give any appearance of such conflict. They must be thoroughly familiar with and follow all Division rules, policies, directives, orders, and city, state and federal laws that pertain to their employment. Nonetheless, the Chief's order banning private investigation work per se goes too far.
Sergeant Sicilian's request should have been granted, with appropriate restrictions and/or cautions if the Chief deemed them to be necessary to protect the City's interests.
The grievance has merit and it is accordingly granted. The undersigned impartial Arbitrator retains jurisdiction to fashion appropriate relief to make Sergeant Sicilian and/or any other affected Officer whole, if the Parties are unable to amicably do so, for six (6) calendar months from this date.