In re
El Paso County Sheriff’s
Dept.
and
Individual Grievant
117 LA (BNA) 1304
AAA Case No.
70-390-00110-01
October 16, 2002
Harold E. Moore, Arbitrator
Issues
Was the Grievant
terminated for just cause? If not, what is the proper remedy?
The parties were afforded the opportunity to examine and
cross-examine witnesses, to introduce relevant evidence, to be heard in
connection with any objections, to argue orally and to present post-hearing
briefs. Upon a careful review of the record the arbitrator finds as
follows:
Applicable Policies
and Procedures Manual Chapter 5.2, Department Rules, Detention Facility Policy
and Procedures Manual, and Civil Service Commission Rules 9.1.03 (in
part.)
1. Conduct, which has proven to be detrimental or has an adverse effect
on the Department.
2. Conduct or action that would seriously impair job
effectiveness.
3. Off duty conduct.
4. Prohibited association.
5. Insubordination.
The Grievant was a
detention officer with the El Paso County Sheriff's Department beginning on
March 2, 1992, until he was terminated on July 31, 2001. The precipitating
incidents leading up to his termination began on June 10, 2001. While on duty
and without permission from his supervising Sergeant, the Grievant left his
post on the Second floor of the jail and removed a prisoner {n.1} from the
prisoner's protective custody cell on the fifth floor of the jail and escorted
the prisoner to the second floor of the jail and permitted the prisoner to make
a personal telephone call. This occurred on the graveyard shift and during a
period that the other telephones that the prisoners are permitted to use are
turned off from 10:30 P.M. until 4:30 A.M. The prisoner was a former detention
officer for the El Paso County Sheriff's Department and had served with the
Grievant on the Special Weapons and Training Squad.
As a result of this incident the Grievant was directed by his
supervising sergeant to return the prisoner to his cell and report to the
sergeant's office. In the presence of another sergeant the Grievant was
directed to read Department Rules/Code of Conduct rule 5.2 D. Misconduct 1. a.
and b. which states:
a. Employees shall not frequent or associate with persons, organizations, or places, where such associating or frequenting would be detrimental to the image of the Department or the County.
b. Employees shall not knowingly have personal associations with persons who are currently in custody, under probation or parole, or under indictment or bond for any felony. Requests for exceptions to this provision must be submitted to and approved by the Sheriff or his designee.
The Grievant read the rules and replied
"okay."
On June 15, 2001, the Grievant's Lieutenant counseled the
Grievant regarding the rules pertaining to associating with prisoners.
On June 22, 2001,
the prisoner while still in custody telephoned the Grievant at the Grievant's
home and requested the Grievant to come to the jail and pick him up upon the
prisoner's release. The Grievant went to the jail, entered a restricted area,
waited for the release paperwork to be processed, escorted the prisoner from
the jail facility and drove the prisoner home. Upon leaving the jail, the
Grievant was observed by the facility commander for the downtown detention
facility exiting the visitors elevator with the prisoner.
The Grievant was
terminated for violation of the association rules and for insubordination.
Employer's Position
The Employer alleges five charges against the Grievant.
First, the Employer maintains that the Grievant engaged in conduct that was
detrimental or has an adverse affect on the Sheriff's Department. Second, the
Grievant's conduct seriously impaired job effectiveness when the Grievant
failed to follow the detention facility policy and procedures. Third, his
actions on June 22, 2001, had a tendency to destroy public respect for himself
and/or the Sheriff's Department when he entered the jail while he was off-duty
and waited for the release of a Prisoner and failed to advise the on duty
supervisor for the reason of his visit. Fourth, the Grievant associated with an
inmate. Fifth, the Grievant disobeyed an order by his supervisor not to
associate with a specific prisoner.
The Employer argues
that the Grievant was ordered to desist and not have any further association
with the prisoner who the Grievant had previously permitted to use the telephone.
The Employer points out the Grievant was brought to the Sergeant's office and
directed by two supervisors not to do any favors for the particular prisoner.
The Grievant was required to read the rules pertaining to correction officers
associating with inmates. The Grievant acknowledged that he read the rules.
The Employer emphasizes that the Grievant, on June 22, 2001
went out of his way to expedite the prisoner's release, walked the prisoner out
of the building, and had a car available to take the prisoner home. The
Employer points out that this conduct required that the Grievant go past the
guards on the first floor without having any official business, and enter a
secured area on the second floor of the detention facility. The Employer argues
that the Grievant's action were a blatant attempt to thwart the authority of
two Sergeants by deliberately ignoring a direct order that had been given to
him a few days earlier on June 10, 2001.
The Employer points
out that police officers must be above reproach in their duties. When the
Grievant chose to disobey a direct order, he chose a course of conduct that
causes disobedience, disloyalty, and chaos in a paramilitary organization.
The Employer points out that although the Grievant was
off-duty at the time of the incident on June 22, 2001, he was on the Employer's
premises. They emphasis that the conduct itself is of such a nature that the
mere occurrence of the act will give rise to a presumption that the employer's
business interest are adversely affected by the employee's off-duty conduct.
The Employer in its post hearing brief cited several authorities where
employees were terminated for off-duty conduct. The Employer maintains that
government employees are held to a higher standard than private sector
employees.
The Employer points
out that the Grievant did not challenge the reasonableness of the rule
pertaining to associating with prisoners. They emphasize that consorting
socially with prisoners who are housed in the detention facility, or on
probation, or under indictment undermines an employee's ability to perform his
or her job because others will always question his loyalty to the Sheriff's
Department. They submit that the Grievant's behavior rendered him a security
risk at the detention facility.
The Employer points out that when the Grievant met with the
two sergeants he did not request an exception to associate with the prisoner,
nor did he seek an exception when he came to the jail to pick up the prisoner.
They argue that the Grievant's behavior lead management to believe that the
Grievant was refusing to abide by a lawful order given by his supervisors.
The Employer maintains that the Grievant had sufficient
notice as to the termination. They point out that the Grievant did not raise
this question until the hearing. The Employer points to Article Nine,
Discipline, Section 1, which states in part that the "The written
statement shall point out the particular rule or rules alleged to have been
violated by the officer and the specific act or acts alleged to be in
violation." The Employer notes that the Grievant was given a Notice of
Termination on July 31, 2001, and that the Collective Bargaining Agreement
prevails in the event that there is any conflict between the Civil Service
rules and the Collective Bargaining Agreement.
The Employer maintains that there was no disparate
treatment of the Grievant and that the seriousness of the offense warrants
termination.
Grievant's Position
The Grievant argues that the drafting of the Notice of
Termination does not comply with the Civil Service Rules. In that the notice
failed to set forth specificity of the facts and that it did not name the
witnesses who were going to testify against the Grievant. The Grievant argues
that the Collective Bargaining Agreement incorporates the Civil Service Rules
and does not vacate the Civil Service Rules. Based upon this premise the
Grievant argues the time of the offense and the names of all of the witnesses
who would come to testify against the Grievant were not included in the Notice
of Termination.
The Grievant further argues that the prisoner, who is
identified by name in the notice, is identified as a "convicted
felon." It is pointed out that the individual was in custody for deferred
probation and had not been convicted according to Texas Criminal law.
The Grievant maintains that the notice refers to an
"inmate" and therefore when the Grievant met the prisoner on June 22,
2001, he was released and therefore no longer an inmate. Further, there was no
showing the Grievant's action had a detrimental, adverse effect or impaired the
job effectiveness of the Sheriff's Department. The Grievant points out that
when he returned to the jail on June 20, 2001, he was off-duty and therefore
the association rules did not apply to him.
The Grievant
emphasizes that he has a twelfth grade education and the two sergeants did not
fully explain the association rules to him. They merely had him read them.
Therefore, there is no insubordination because the order is ambiguous. The
Grievant maintains that he misread the association rules because he did not
think he was doing wrong. The Grievant's counsel argues that if the Grievant
wanted to get away with doing the acts he is accused of he could have had the
prisoner just show up after he walked outside of the jail, jump in his car a
half a block away from the jail and leave. The fact that the Grievant went into
the jail shows he didn't think it was wrong.
The Grievant pointed
to three other individuals who associated with prisoners and were not
terminated. Therefore the Grievant maintains that he has been treated
disparately. He requests that the termination be set aside or modified.
The quantum of proof
required of an Employer to sustain a charge of insubordination is much higher
than many other charges of misconduct by an Employee. The Employer must show
that the Employee committed the act or the omission of which he/she is being
accused. It also must be shown that the rule or conduct expected of the
Employee is reasonable and related to the Employer's business interest. The
Employer must show that the rule has been communicated to the Employee, that
the Employee understood it, or that the offense is so serious that an Employee
could be expected to know his conduct is improper and would warrant punishment.
The Employer has met this quantum of proof in this case.
The actions of the
Grievant are not in dispute. He acknowledged that he left his post on the
second floor of the jail and escorted an incarcerated individual from the fifth
floor to the second floor to make a telephone call. The Grievant permitted the
individual to use a telephone during a period of time that other inmates are
denied the use of telephones. The Grievant's motives may have been
compassionate due to the Grievant knowing the incarcerated individual, having
previously worked with him. Also because the Grievant believed that the
incarcerated individual was exhibiting signs of suicidal tendencies. Although,
the Grievant did not report the suicidal tendencies to his supervisor, which
the Grievant was required to do.
The telephone incident resulted in the Grievant being
required to read Department Rule 5.2 D. 1 and 2, which in part prohibits
employees from associating with persons which may be detrimental to the
Department and having personal association with persons who are currently in
custody, under probation, parole, indictment or bond, without prior approval.
This was done in the presence of two Sergeants, and the Grievant acknowledged
that he read and understood the rule. This occurred on June 10, 2001. On June
15, 2001, the Grievant's Lieutenant reiterated to the Grievant the Department's
concern regarding the association prohibition.
Seven days later the
Grievant came to the jail, gained access to a secured area and escorted the
same individual from the jail that was involved in the earlier incident. The
Grievant acknowledged that the facility commander observed the Grievant and the
prisoner when they were exiting the elevator. It is difficult for this
arbitrator to comprehend that after being told by three supervisors that the
Grievant should not associate with an inmate, that the Grievant did not
understand that escorting the incarcerated individual upon his release was not
permissible.
The legal subtleties advanced by the Grievant that the
prisoner was not an inmate at the time of his release may be given
consideration in the administration of the Texas Penal Code. However, that does
not apply to the Employee Employer relationship. Even if it did, the meaning of
the no association rule is reasonable and clear. Detention Officers are not
permitted to show favoritism toward or associate with individuals who are or have
been incarcerated. To do so affects the orderly operation of the jail, fosters
temptation to bribery, gives rise to discontent of other prisoners, and creates
suspicions among other detention officers. Whether an individual is called a
prisoner, inmate, detainee, or incarcerated individual, the results are the
same. When an individual is in a jail cell he simply does not have the freedom
to come and go from the jail at his/her pleasure. It is the job of a detention
officer to keep prisoners in jail and treat all inmates alike. This warrants
the rule that detention officers do not associate with the individuals they are
charged with detaining.
The subtle
distinction argued by the Grievant that the no association rule does not apply
when the detention officer is off duty must be dismissed. It is a
well-established principle in arbitration that arbitrators and courts tend to
protect government employer's reputation and missions because of the public
trust placed upon public employees.2 However,
in this case, the Grievant was at the work place when he escorted the inmate
from the jail. All Employers have a legitimate interest in what occurs at the
work place. The escorting occurred merely a week after the Grievant was told
not to associate with the inmate.
The notice of termination delivered to the Grievant was
more than adequate to appraise the Grievant of the reasons for his termination.
The use of the term "convicted felon" in no way prejudiced the
Grievant. The notice identified the individual by name. His criminal
classification was not misleading to the Grievant. Likewise, the subtlety that
the inmate was not technically an inmate at the time of his release is not
fatal to the Employer's allegation, nor did it mislead the Grievant. Meeting a
released prisoner at the jail is an act of disobeying an order and therefore
insubordination.
The Grievant also
alleges disparate treatment in that other detention officers have associated with
prisoners in the past but were not terminated. A review of those cases reflects
clear distinctions from the instant case. The detention officers were
disciplined. Several cases occurred several years ago and none of the cases
occurred in close proximity to the individuals being told not to repeat the
offense.
The Grievant
appeared to be an intelligent and articulate individual. The no association
rule is clear and unambiguous. The Grievant should
not have returned to the jail and escorted his friend and former worker from
the building after having been told not to associate with the inmate. This was
act of open disregard of three supervisors' instructions not to associate with
inmates. Further, the Grievant did not avail himself of the exception afforded
by the Department Rule.
The Grievant was
terminated for just cause.
The Appeal is
denied. The Grievance is denied.
Endnotes
1. The term "prisoner" is used to depict the
facts because the Grievant raised the issue of the status of the
individual.
2. See Discipline and Discharge in Arbitration, ABA
Section of Labor Employment Law, BNA Books, 1998, Pgs. 312-315.
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