In re the
City of Edmond
the Fraternal Order of Police
Lodge No. 136
118 LA (BNA) 1094
FMCS Case No. 031022/00997-8
April 15, 2003
Ed W. Bankston, neutral chairperson, selected by parties through procedures of the Federal Mediation and Conciliation Service; Arland V. Perkins, employer member; Bill Young, union member
The parties to this dispute, the City of Edmond (City) and The Fraternal Order of Police, Lodge No. 136 (FOP) are signatories to a collective bargaining agreement (Agreement) effective July 1, 2001 until June 30, 2002. The City of Edmond is predominately a residential suburb and is one of the fastest growing cities in the State of Oklahoma. With a population of 70,000, the City covers about 101 square miles and is adjacent to Oklahoma City. The Police Department employs 103 commissioned officers, with a Chief, Deputy Chief, 3 Captains, 3 Lieutenants, 9 Sergeants and 11 Detectives. Others are Police Officers from whose ranks are promoted Detectives. Detectives serve as criminal investigators and have no supervisory responsibility or authority. The FOP represents “all permanent paid commissioned officers ... of the Edmond Police Department,” except the Chief of Police and his Deputy. As police officers, these grievants are members of the bargaining unit.
The FOP complains that the detective promotion process at issue was irregular and in violation of! the collective bargaining agreement, and in violation of Police Department Policy on Promotions in that the process was not “fair and equitable.”
At the hearing of the matter, the parties stipulated to the following issue:
Whether the detective promotion process conducted in May 2002 was in violation of Police Department Promotion Policy Number 01-04?
If so, what is the appropriate remedy?
In view of the nature of the dispute as briefly described above, the issue to be resolved by your arbitrator, and the positions of the parties with respect to the issue, it appears that the following provisions of the Agreement are relevant to the resolution of this dispute.
Section 7.1 The Employer, except as otherwise specifically provided for in this Agreement, retains and reserves unto itself, without limitation, all the powers, rights, authority, duties, and responsibilities conferred upon it and vested in it by the laws of the constitutions of the United States and the State of Oklahoma, the Statutes of the state of Oklahoma, and the Charter of the City of Edmond. Further, all rights, which ordinarily vest in and are exercised by employers are reserved to and remain vested in the Employer, including but not limited to the generality of the foregoing and the following managerial rights: * * *
(c) To determine the size of the work force and increase or decrease its size.
(d) To hire and assign employees.
(e) To direct the work force, assign work within the Police Department, and determine the number of employees assigned to any particular job, assignment or operation. * * *
(g) To select employees for promotion to supervisory positions, to determine the qualifications and competency of employees, and to evaluate their performance. * * *
(j) To determine Police Department Policy, including the right to manage the affairs of the Police Department.
Article 10 Grievance Procedure
Section 10.1 It is the intent of the parties to this Agreement to prevent grievances and to settle any which may occur as fairly and as promptly as practical ... This Article is not intended to limit the parties right to grieve or arbitrate any matter which would otherwise be subject to arbitration by statute.
Section 10.2 A grievance is any dispute, controversy, or difference between the Employer and F.O.P. or the Employer and any individual employee on any issue falling in either of the two categories:
(a) Meaning, interpretation, application, or alleged violation of the terms and provisions of this Agreement.
(b) Meaning, interpretation, application, or alleged violation of policies and procedures of the Edmond Police Department, including disciplinary and discharge actions. * * *
Section 10.5 Grievances will be processed in the following manner and within the following stated time limits: * * *
Step 5 ... If either party rejects the mediator’s recommendations or mediation is not requested, the grievance shall proceed with arbitration as follows:
(a) Within seven (7) calendar days from the date of the request for arbitration, the F.O.P. and the Employer shall each select and name one (1) arbitrator and shall immediately thereafter notify each other, in writing, of the name and address of the person so named. The two arbitrators so selected and named shall, within seven (7) calendar days from and after expiration of the seven (7) day period herein before mentioned, agree upon and select a third arbitrator. If, on the expiration of the period allowed therefore, the arbitrators are unable to agree upon the selection of a third arbitrator, the F.O.P. and the Employer shall request the Federal Mediation and Conciliation Service to provide a list of seven (7) arbitrators already selected and shall alternately strike the name of one (1) arbitrator from the list until one (1) name remains, with the Employer making the first strike from said list. The third arbitrator, whether selected as a result of an agreement between the two (2) arbitrators previously selected, selected from the list provided by the Federal Mediation and Conciliation Service, shall act as Chairperson of the Arbitration Board.
(b) ... The hearing shall be informal and the rules of evidence prevailing in judicial proceedings shall not be binding. Any and all documentary evidence and other data deemed relevant by the arbitrators may be received in evidence. . . .
(c) The arbitrators shall issue a written opinion containing findings and recommendations with respect to the issues presented. A copy of said opinion shall be mailed or otherwise delivered to the F.O.P. and the Employer. In the event no majority exists, the decision of the Chairperson shall prevail.
(d) The decision, findings and recommendations of the Arbitration Board shall be final and binding on the parties to this Agreement.
(e) The F.O.P. shall pay for its arbitrator and the Employer shall pay for its arbitrator. The cost of the third arbitrator shall be shared equally between the F.O.P. and the Employer. If a transcript of the proceedings is requested, then the party so requesting shall pay for it.
Policy and Procedure #01-04
Subject: This policy shall govern the Edmond Police Department in regards to promotions to all commissioned ranks, excluding Chief of Police.
A. It is the policy of the Edmond Police Department to assure all employees a fair and equitable opportunity for advancement and to identify the most qualified individual for advancement in a demonstrably measured and organized manner.
The grievance arose from a promotional procedure given for the position of detective in the Edmond Police Department. The promotional process is governed by City’s Policy and Procedure #01-04. Such policy is incorporated as part of the collective bargaining agreement by law. As provided by the Oklahoma Fire and Police Arbitration Act:
All rules, regulations, fiscal procedures, working conditions, departmental practices and manner of conducting the operation and administration of fire departments and police departments currently in effect on the effective date of any negotiated agreement shall be deemed a part of said agreement unless and except as modified or changed by the specific terms of such agreement. (11 O.S. 51-111)
In late January 2002, the City notified its police officers of a vacancy at the rank of Detective. Those interested in the Detective’s job were invited to make application. According to policy, the selection process consisted of: (1) a 100-point, four-hour multiple choice examination of 100 questions to be administered on April 15, 2002; (2) a 50-point, four-hour written exam of four essay questions to be administered on May 8, 2002; and (3) a 50-point, thirty-five minute interview with the assessment board scheduled for May 9, 2002. Administration of the 100-item, multiple-choice examination was unremarkable and not herein at issue. The grievance concerns administration of the written essay and of the interview portions of the assessment center. Officers C.J. Wise, Richard Bercher and Tony Newsom completed the selection process as scheduled. As the top applicant, Officer Newsom was selected for promotion to Detective.
On May 22, 2002, Officers Bercher and Wise filed a grievance complaining “that the detective promotion testing process ... was done in violation of ...Policy and Procedure #01-04 ...” and the collective bargaining agreement. The City denied the grievance “because 1) you have made no effort to prevent or settle the grievance prior to filing it, and 2) because you do not set out the reason for the grievance.”
An internal Fact Finding Committee was then convened to investigate the charges that the promotion process was unfair and in violation of policy. The committee found that,
Specifically, some candidates during this process were allowed to use reference materials (laptop computer, notes, books, etc) during the written essay portion of the assessment process. Some candidates had not been informed they were able to possess these items prior to the written essay portion of the assessment. During the oral interview portion of the assessment center one candidate was allowed to take training records into the assessors. The assessors did not take, nor review the specific training records, but one assessor did make statements after the fact on recorded videotape to the other assessors that it did seem as though that particular candidate appeared more prepared. It was the opinion of the fact-finding committee that these incidents did cause an `unfair advantage’ and is in direct violation with the policy.
Upon review of the determinations of the Fact Finding Committee, the City again denied the grievance as, “... the instruction given prior to the assessment center neither allowed nor denied candidates the ability to bring outside resources. The written exercise is designed so that outside materials would be of no use.” Finally, the City Manager denied the grievance because, “There is no written policy which provides for what an officer may bring to this exercise ... Basing my decision on the `fair and equitable’ language of the policy, I find that these incidents did not effect (sic) the outcome of the process because no policies were in place to require any different action on the City’s part.”
The grievance has now been processed to arbitration. The Union asks as remedy that, “the written assessment and oral assessment portions of the detective promotion process be re-administered ... with new assessors, and that the successful applicant should be compensated retro pay back to the date of the original placement of 05/11/02.”
The FOP—It is the position of the FOP that the grievance ought to be sustained because “of the inconsistent application of the rules to the procedure ... such that there was not a fair and equitable opportunity for advancement, as required by Policy #01-04.” According to the FOP, the three candidates solicited advice from varied sources concerning whether the use of outside materials was allowed during the essay and interview portions of the assessment. “They received varied answers.” As a result, Officer Wise took nothing but pen and pencil to the written essay exam; Officer Bercher took a laptop computer, a Title 21 book and a sourcebook for detectives; and Officer Newsom “brought in some scrap notebook paper in case I needed more room to write.” To the oral interview, Newsom took his training records; Bercher and Wise took nothing.
The FOP argues that the promotion process is “tainted,” citing the “unfair advantage” of the use of outside resources as determined by the joint labor management Fact Finding Committee. The FOP argues that, “the promotional process was not done in a fair and equitable manner ... in the sense that all officers had an equal opportunity to use resource and reference materials during the course of the exam.” In corroboration, the FOP highlights the fact that the City has now issued clarification to the effect that officers, “will not be allowed to bring anything ... into the testing area,” such that, “everyone will be on equal ground.” The FOP asks that the grievance be sustained, that the written and oral assessments be re-administered with different assessors and that back pay be awarded to the successful candidate.
The City—The position of the City is that the grievance ought to be denied for the following reasons. First, there was no written policy relative to the use of outside materials, so there can be no violation; second, the use of such materials at issue was of no advantage due to the nature of the testing; third, “No unfair bias has been demonstrated ... due to the use of outside materials”; and finally, the equitable doctrine of “clean hands” disfavors the grievance of Officer Bercher. The City asks that the grievance be denied.
At issue is the integrity of the Spring 2002 promotion procedure for Detective, and whether such procedure was properly administered pursuant to Promotional Policy #01-04. The Policy states that:
It is the policy of the Edmond Police Department to assure all employees a fair and equitable opportunity for advancement and to identify the most qualified individual for advancement in a demonstrably measured and organized manner.
The grievance properly falls within Section 10.2 of the Agreement wherein “grievance” is defined as, “any dispute ... on any issue,” concerning the, “meaning interpretation, application, or alleged violation of the terms and provisions of this Agreement ... or alleged violation of policies and procedures of the Edmond Police Department.” The FOP alleges a violation of Promotion Policy #01-04 asserting that, “the promotional process was not done in a fair and equitable manner, equitable in the sense that all officers had an equal opportunity to use resource and reference materials during the course of the exam.”
The FOP complains that while Officer Wise brought nothing to the assessment center, Officers Bercher and Newsom brought along extraneous materials that were used to their advantage. Bercher readily admits to “taking a laptop, a Title 21 book, and a book on detective procedures” to the written exam. Wise observed Newsom to come into the room with “a drink in one hand and some rolled-up papers in the other.” Newsom states that the rolled-up paper was actually “some scrap notebook paper” just in case he “needed more room to write.” It is interesting that all three candidates had consulted other officers for advice. Wise and Bercher had consulted a common source, Sergeant Pratt, concerning the efficacy of extraneous materials. Yet, while Wise decided to bring nothing, Bercher took the opposite tack of bringing a laptop, a Title 21, and a sourcebook. Newsom took some blank paper on which to write. Even with all Bercher’s apparent “advantage,” he was out-scored by more than two-to-one (100%-42.5%) at the assessment stage of the promotional procedure. So, where’s the rub? Where is the “unfair advantage” supposedly accruing to Newsom as the prevailing candidate?
The FOP faults the process because Newsom took his training records to the oral interview. But, “The assessors did not take, nor review the specific training records,” and, Newsom states the records “never left my hands ... was never opened while I was in the room.” Clearly, there’s nothing here to fuss about. Clearly, Newsom gained no “unfair advantage” merely seeming to be prepared. On this record, his advantage was that he was entirely prepared! So, where’s the rub?
The FOP focuses on the fact of the candidates’ disparate approaches to the exam, one bringing-in no stuff, another bringing-in lots of stuff, and the third with unreviewable stuff, and that, according to the FOP, is what provides the raison d’etre? So, let’s dig some more.
The FOP complains of the lack of guidance with respect to extraneous materials. Indeed, there is no policy, no procedure, and no rule controlling the use of such resource materials. Ms. Roberta Smith is the City’s Human Resources Director. She has “conducted all the assessment centers in the city” for about the past 10 years, and she conducted the promotion process at issue. Ms. Smith states that there is nothing in the policy to “prevent people from bringing outside materials to the essay portion” of the assessment. Indeed, the policy is silent on the issue. Ms. Smith also acknowledges that in the past candidates have brought outside materials to the testing, and without complaint or objection. Ms. Smith states that, “prior to this, it (promotional policy) had never stated whether anything could be brought or not brought. It was not an issue.” The FOP is in agreement that there is no policy with respect to outside resource materials, and that this is the first time it has been a problem. On the record, it appears that “some people think they can bring outside materials and some people think that they can’t.” That’s precisely what happened here. Wise understood that he could not, so he did not; Bercher understood that he could, so he did; Newsom was not exactly sure, so he was cautious. The City insists that in keeping with past practice, each candidate made his own choice. And, that’s what the record shows. So, where’s the rub?
The FOP complains “of the inconsistent application of the rules to the procedure.” The only semblance of rules on this record is the City’s tacit past acquiescence of allowing the use of outside materials. Otherwise, there are no rules, hence no inconsistency of application inasmuch as materials have always been allowed into the exam.
The FOP insists that, “the promotional process was not done in a fair and equitable manner, equitable in the sense that all officers had an equal opportunity to use resource and reference materials during the course of the exam.” (Emphasis added) Of course, one cannot use the stuff if one does not bring the stuff. On this record, each candidate had an opportunity to bring or not to bring outside resources. It was an independent choice for each candidate. After some informal research, each candidate made a reasoned choice as to what to bring to the exam. That one chooses not to bring stuff and another chooses to bring stuff does not necessarily contaminate the testing process so long as the ability to choose is equal and unadulterated. As important as equality of choice is the fact that whatever the use of such materials, there was no beneficial effect on results. Here, there was no beneficial effect as, “There are no right or wrong answers ... it’s just the opinion of the candidate.” Wise brought nothing with him, yet his performance outstripped Bercher with his laptop, Title 21, and sourcebook. Even with those outside resources, Bercher’s performance was far off the pace. Newsom used no outside materials, but was the prevailing candidate. So, where is the “unfair advantage” associated with the use of outside resources? There is none.
The FOP insists that language of the policy provides without equivocation for a “fair and equitable opportunity for advancement.” The FOP argues that, “Unfortunately, things were not that clear ... all candidates were not given the same fair and equitable opportunity.” On the surface, the FOP argues the fact that some candidates used outside resources and others did not is sufficient proof that the same opportunity did not exist for all, hence the unfairness.
The FOP insists that the language of the policy “allows for no exception, and none should be created by adding language to the CBA.” According to the FOP, the language of the policy is clear, unequivocal and absolute, such that degrees of “unfairness” do not comport with the language of the policy. Examination of the language reveals that the term “fair” is not so precise as the FOP submits.
What is fair? There is no question of fairness concerning the multiple choice test, mainly because it is an objective examination, meaning that there are right and wrong answers, and those answers are not influenced by personal feelings or prejudice; it is unbiased, thus fair. To the contrary, the essay test at issue is not objective, and is not designed to elicit right or wrong answers. It is subjective and designed to produce a range of responses to the question. Here, the range of responses was scored by assessors along these subjective dimensions (criteria): problem analysis, judgment, planning and organizing, oral communication, sensitivity, leadership, and decisiveness. It is important to note that each of these dimensional criteria is subjective in nature. The test design is imminently fair and produced, as expected, a range of performance among candidates.
According to Webster, the term “subjective” means, “existing in the mind; belonging to the thinking subject rather than to the object of thought (opposed to objective); pertaining to or characteristic of an individual; personal: a subjective evaluation.” Webster’s College Dictionary, McGraw-Hill Ed., 1991, p. 1330. Thus, the process is about subjective evaluation of the candidates. That is why the City insists that outside materials did not affect the outcome of the testing process. There was no benefit, and could be no benefit, to the use of outside resources because of test design.
The Policy requires a “fair and equitable opportunity for advancement.” Webster’s defines the term “fair” as, “free from bias, dishonesty, or injustice.” (Webster’s, ibid, p. 478) On this record, there is no evidence of bias, dishonesty or injustice associated with the presence and use of outside materials during the essay exam, and most certainly none during the interview. Webster’s defines the term “equitable” as, “fair and impartial or reasonable; just and right.” Webster’s, op cit, p. 452. On this record, the essay examination and the interview were conducted with complete impartiality and reasonableness such as to comport with the promotional policy requiring fair and equitable treatment of the candidates.
With respect to the idea that, “it is important to follow the spirit of the policy and not allow any exceptions,” as though the policy of “fair and equitable” does not abide a range of reasonableness, consider the following treatment of the term “fair.”
the term “readily accommodates such incongruities as mediocre and the usual legal synonym equitable; it evokes subjective judgments of degree ...Fair gives no clue to substance except that it supposed to be something good, or good for you, whether you like it or not ... fair is flexible in the extreme ... a blob remains a blob ... (Mellinkoff’s Dictionary of American Legal Usage, West Publishing Co., 1992, p. 232)
Gauged by the above elucidation, it is fair to say that the term fair connotes a range of reasonableness, and that the facts of the matter at hand fit within that range.
Mellinkoff instructs further that, “fair and equitable” is a “term of art; apt for convenience of reference but not as a description of a specific degree of protection ... a redundant form of equitable,” Thus, no solace is afforded the position of the FOP with regard to the argument that the language of the policy does not accommodate the facts of the matter.
With particular respect to grievant Bercher, the City asserts that, “it is a fundamental concept of both life and law that parties with `unclean hands’ cannot request equitable remedies.” In fact, Bercher is the only candidate to have used outside resources. But, it does not follow that his hands are “unclean,” unless he has committed some wrong. According to the “clean-hands doctrine,”
a party cannot take advantage of his or her own wrong by seeking equitable relief or asserting an equitable defense if that party has violated an equitable principle, such as good faith; such a party is described as having `unclean hands.’ (Black’s Law Dictionary, West Pub. Co., 1996, p. 103)
Bercher’s actions do not fall within the clean-hands doctrine because he has done no wrong. He cannot be faulted for use of outside materials because he obtained specific permission to do so. And, I’m certain that given the totality of circumstances, the City would have given such permission to Wise and Newsom also, had they asked. Wise was correct in his judgment that outside materials would be of no use. He cannot be faulted even though he got “angry” and “upset” when he saw Bercher with the stuff. And, the City cannot be faulted for his upset. Newsom committed no actions by which to be faulted. So, where is the fault? Where is the “unfair advantage” found to exist by the Fact Finding Committee? I find none, save perhaps, the perception of an appearance of unfairness, but certainly no advantage such as to taint, contaminate or corrupt, the testing process. If anything, this fact situation lends proof to the assertion that the testing process is entirely meritorious and not subject to compromise by the use of outside materials. The parties are commended for their efforts in producing a testing process that works so well. The proof is in the pudding.
As noted earlier, this is a matter of first impression for the parties. Immediately following, and in recognition of the problem, the City notified the FOP that it intended to clarify “what can and cannot be brought to the exercise as `helps’, i.e., dictionary, thesaurus, etc.” Sure enough, in preparation for the next round of promotions, the City issued a statement to the candidates that, “Everything you will need to take the test will be provided, therefore, you will not be allowed to bring anything with you into the testing area.”
The FOP asserts that the City’s remedial effort to “make the rules clear” is proof that the candidates “were not given the same fair and equitable opportunity.” But, the City was in fact making a new rule in clarification and control of the testing process. As noted earlier, there was no rule with regard to outside materials. Now, there is a rule; there is clarity; the problem is abated. The City’s after-the-fact effort at remediation may not be regarded as proof of testing process inequities. Moreover, the parties are commended for their actions meant to alleviate future incidents.
In conclusion, I find no violation of the contract, and no “unfair advantage” by the manner and administration of the testing process at issue. The assessment process was not tainted, nor contaminated by the presence of outside materials such as to create inequities. The testing conformed to the policy, and produced that which was intended—”a fair and equitable opportunity for advancement and to identify the most qualified individual for advancement in a demonstrably measured and organized manner.”
For all the reasons set forth and discussed above, which all are encouraged to read with care, it is the Award of the Arbitration Board that the grievance is DENIED.