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Arbitration Award

 

 

In re

City of Indianapolis

and

American Federation of State,

County and Municipal Employees,

Indiana Council 62, Local 725

 

117 LA (BNA) 911

AAA Case No. 52-390-00300-01

 

June 20, 2002

Ellen J. Alexander, Arbitrator

 

 

Statement of the Case

Grievant S__ was an Animal Control Officer (ACO) in the Animal Care and Control Division of the City of Indianapolis until his discharge effective February 28, 2001, following a pre-disciplinary meeting held February 21, 2001. R__, the ACCD department administrator, gave in the "Official Administrative Notice of Unacceptable Performance or Conduct" the following basis for the discharge:

On Wednesday, February 13, I was notified that your Special Deputy Powers granted by the Marion County Sheriff were permanently revoked due to the result of an Internal Affairs investigation. The explanation for your powers being revoked was stated as "your actions in this investigation violated several rules and regulations for non-employee Special (Deputies)." Such activity included:

(1) Unbecoming conduct during your ACCD investigation that originated the Internal Affairs Inquiry

(2) Failure to comply with federal, state, local, and laws and regulations during work hours by not assisting with the Sheriff's investigation, and

(3) Failure to conform to reasonable supervisory orders by failing to assist with the investigation ... .... .

To perform as a City of Indianapolis Animal Control Officer, you are required to acquire and maintain Special Deputy Powers granted through the Marion County Sheriff. Your loss of these powers has resulted in your being unable to perform duties as an Animal Control Officer and your loss of employment with this division.

The Union then filed the instant grievance, in which it protests that under their Master Agreement the City and the Union "agree to administer progressive discipline when necessary. Progressive discipline was not used in S__'s case." The grievance further alleges that the discipline was arbitrary, capricious and discriminatory. The remedy requested initially was that

 

"this practice be stopped and for the Marion County Sheriff department and the City of Indianapolis and Animal Care and Control (to) be held accountable. Plus, for S to get his special Deputies powers back and his job as ACO .... and to be made whole in all wages."

The grievance was denied and proceeded to arbitration. In arbitration the Union first raised a procedural (timeliness) challenge to the City's handling of the grievance.1The City both protests the union's delay in raising that challenge and denies its validity. The procedural challenges are not sustained for reasons discussed below.

The issue on the merits is whether the Grievant was terminated for just cause under the terms of the collective bargaining agreement and if not, what is the proper remedy?

Applicable Provisions of the Master Agreement

ARTICLE II Rules

Section 3. The City and the Union agree with the general philosophy that the primary purpose of the disciplinary action is to correct employee behavior or conduct. Discipline shall not be arbitrary or capricious. Except in cases involving alleged criminal offenses or other serious employee misconduct, the disciplinary action procedures should be progressive in nature and the selection of discipline in any specific case should be appropriately based on the circumstances of the offense and the employee. In accordance with Article V, management will issue disciplinary actions timely and within ten working days from the date of management's knowledge of the relevant facts concerning the alleged infraction; provided, however, that in cases in which criminal conduct by an employee is alleged and under investigation discipline shall be imposed within five working days of the date such investigation is completed .... .

ARTICLE III Management Rights

The Management of Departments with covered employees and the direction of its working force are vested exclusively and solely in the City and shall not in any way be abridged except as provided in this Agreement. The City in the exercise of its functions of Management shall have the right (a) to direct its employees; (b) to .... . discharge, suspend, discipline, or demote employees for just cause ...(d) to maintain the efficiency of the government operations entrusted to it and to establish policy ... f) to make rules and regulations for the conduct of employees and safety of the work force ... ... (h) to take whatever actions (sic) necessary to carry out the mission of the public agency as provided by law .... .

ARTICLE V Grievance and Arbitration Procedure

D. Pre-Disciplinary Meeting

Unless the circumstances indicate otherwise, when a supervisor or other manager is considering giving an employee a written reprimand, or a disciplinary suspension, demotion or termination, the supervisor or other manager shall hold a pre-disciplinary meeting prior to issuance of the discipline. This meeting shall be held within five working days after management has knowledge of the relevant facts concerning the alleged infraction (in cases in which criminal conduct by an employee is alleged and under investigation, the meeting shall be held within five working days of the date such investigation is completed.) . . . . Management shall issue disciplinary action within five working days after the pre-disciplinary meeting...

F. Arbitration

... In cases arising under this Agreement involving discipline for unsatisfactory work performance or misconduct, except cases in which there is evidence of unlawful conduct by an employee, the decision of the arbitrator shall be final and binding on the parties hereto (and the party losing before the arbitrator shall bear the expense of the arbitrator.) In all other cases arising under this Agreement, including cases in which there is evidence of unlawful conduct by an employee, expenses of the arbitration proceeding shall be borne equally by the parties, and the decision of the arbitrator shall be final and binding on the parties hereto, unless the Department Director shall within ten working days after being advised of such decision notify the Union and the Mayor in writing that the decision is considered by the Director to be in excess of the arbitrator's authority, unsupported by substantial evidence in the record, or clearly erroneous ....

(Addendum) ARTICLE VIII Discipline Issues and Procedures

Section 4 Progressive DisciplineThe parties recognize the concept and use of progressive discipline as a sound basis for the administration of employee discipline. This discipline will be administered consistent (sic) within the guidelines of the Employee Handbook and will include as appropriate documented oral warnings and written letters of counseling. It is recognized that progressive discipline is not required in serious cases.

Background and Findings of Fact

According to the written job summary the person holding the Animal Control Officer position

"(is) responsible for apprehending and impounding animals that are in violation of municipal codes, investigates citizen complaints.... issues summons and citations to residence (sic) of Marion County who are in violation of Indiana State law and/or Indianapolis Municipal Codes... (The) ability to obtain and hold special deputy powers .... is required.

The description also lists under "essential job functions"

 

respond to calls for assistance from citizens, Indianapolis Police Department or Marion County Sheriff's Department. Incumbent may be placed in a hostile environment.

All animal control officers receive the special deputy sheriff appointment with its concomitant, non weapon-carrying and limited authority to "keep the peace" and "make arrests and detain in custody any person arrested until the cause of such arrest has been investigated." The Sheriff Department written appointment form, which the grievant signed, contains an acknowledgement by the Special Deputy that he\she agrees that he/she is to serve at the pleasure of the Sheriff, who may revoke his/her Special Deputy powers at any time without cause, notice or a hearing . . . (and is) subject to any written limitations any specific requirements presently imposed or to be imposed by the Sheriff, including the rules and orders of the Sheriff's Department ...

Deputy Sheriff powers are utilized by Animal Control Officers in areas of Marion County which are outside the city boundaries of Indianapolis. They need these powers to enter onto private property, and they issue citations to citizens for both city of Indianapolis ordinance type violations and county violation.2

Animal Control Officers work (on assigned rotation) by designated districts; most (now all) of which districts encompass both parts of the county and parts of the city. The weekend animal control officers on call could be sent anywhere in the city or county. ACOs respond to dispatches from the municipal police department and the sheriff's department. While they can enter outside property, they cannot enter residences except alongside fully sworn police or sheriffs on the scene.

The record is clear, based on testimony and documents, that to fully perform the duties of an Animal Control Officer employees must have deputy powers. There is one other position in the Animal Care and Control Division-animal care technician-and it does not require possession of police authority. The Grievant had once held that position.

Procedural Challenge

Division Administrator R__ testified that on February 9, 2001 representatives of the sheriff's department came to the ACCD, physically removed the grievant's identification and badge, and communicated that the grievant's special deputy powers were being revoked.3 She felt that she could not ". . . handle S__ in an administrative human resource approach without having something in writing." Therefore she requested that the Sheriff give her "something official so that I knew exactly what I was going to be dealing with so far as S__ and discipline or his employment."The Sheriff subsequently sent a "Letter of Revocation" dated February 13 to the grievant at his home, informing him that this letter shall serve as your notification of the permanent revocation of all special deputy authority issued to you. The action is a result of the Marion County Sheriff's Department Internal Affairs Investigation.

Your actions in this investigation violated several rules and regulations for non-employee special deputies and caused embarrassment for the Marion County Sheriff's Department and your employer.

Based upon this action, you are no longer to exercise any authority as a Marion County Non-employee Special Deputy and to do so may subject you to criminal charges. Again, this action which (sic) is taken in the best interest of the Marion County Sheriff's Department.

A copy of this letter was sent to the Animal Control and Control Division (i.e. R__) as well as (Marion County) "Internal Affairs."The Grievant does not know when he actually received delivery of it because he "was on vacation at the time" in Georgia.

The Union asserts that, procedurally, the City was obligated to offer a pre-disciplinary hearing within five days of the date when the City knew that the grievant's badge and identification and deputy powers had been removed. The Union places that city knowledge as occurring when persons from the sheriff's office came to remove his badge and ID, i.e. on February 7th. The City replies, as R__ stressed, that it could not properly take action until receipt of formal or concrete (i.e. written) notice from the Sheriff of the loss of powers.

The labor contract provides that "Unless the circumstances indicate otherwise, when a supervisor or other manager is considering giving an employee a written reprimand, or a disciplinary suspension, demotion or termination, the supervisor or other manager shall hold a pre-disciplinary meeting prior to issuance of the discipline. This meeting shall be held within five working days after management has knowledge of the relevant facts concerning the alleged infraction (in cases in which criminal conduct by an employee is alleged and under investigation the meeting shall be held within five working days of the date such investigation is completed.) .... Management shall issue disciplinary action within five working days after the pre-disciplinary meeting ... "

The above caveat-"unless circumstances indicate otherwise"-could certainly include the "circumstance" of an employee being on vacation and unavailable. Also in dispute is whether management had "knowledge of relevant facts" on February 7. R__ knew the "fact" of the removal of the badge by sheriff personnel. This was concrete, but also informal and unexplained sheriff action. She requested a written communication. A reasonable management concern and method of operating in the Human Resources area would be to require some formal indication of a change in employee status so significant as to affect job eligibility, including the basis for the sheriff's decision. The deputy powers had been granted in writing, and should be removed in writing.

Thus, the City's "knowledge of the relevant facts" started with its receipt of the sheriff's letter. For purposes of setting a pre-disciplinary meeting the count could begin on February 13 or 14 when the letter was received by the City. (The delay between the visit of sheriff officials to remove the badge\ID on February 7, and the formal sheriff letter's receipt in Human Resources on February 13 or 14 was only six or seven days and not prejudicial to the vacationing grievant.) In summary, I accept as a definition of the City's "knowledge of relevant facts" the date of its receipt of the formal notice of revocation by the sheriff; that is a supportable and reasonable interpretation of the contract. Five working days from February 13 would be February 20 (or February 21 if one allows for the fact that February 19 was a national holiday.) In summary, I conclude that the pre-disciplinary meeting held February 21 was timely.4

Cause for Discharge: Loss of Deputy Powers Issue

S__'s loss of deputy powers ultimately resulted from an event on November 4, 2000 when he had been dispatched to investigate alleged animal fighting. Reportedly he had not found any evidence. Some hours later another ACO had gone out and conducted some interviews and found bloodied animals. This led to an investigation of possible criminal dog fighting and also raised questions as to the Grievant's own conduct.

S__testified that while he was on duty, a City "operations manager"Watson (since departed) "told me that he had Internal Affairs on the phone and they would like to talk to me and I told him `no, that I had an attorney, that my attorney advised me not to talk to them.' "A few minutes later, two people came to ACCD from the Sheriff's Department Internal Affairs and took his special deputy badge and card. The City "operations manager" then took away his Indianapolis Police Department card.

The City affirmed during repeated questioning of ACCD Administrator R__that this dismissal is not predicated upon the conduct which lead to the loss of deputy status; it is based solely on the fact of the loss. Hence the "just cause" results from an "unappealable"decision of the sheriff under the terms of the deputy appointment, an event not subject to labor contract protection. The grievant acts as an agent for the Police and Sheriff Departments, but they are not his employer and not party to the labor contract.

The details of the Sheriff's "Internal Affairs" investigation or of the grievant's conduct during the November investigation of animal mistreatment were not elicited in arbitration. Whatever the nature of S__'s conduct, negligence, or malfeasance if any, it is not before me. Grievant S__ does not deny that he declined to answer questions from the sheriff. He testified that the "first and second times" when he "went to talk to the detectives ... they told me it was going to be a criminal case, they told me I was involved in a criminal case, so that's why I got an attorney." The Grievant stated that he has not heard anything further about the matter nor about "being charged criminally." There is no claim or evidence that the Grievant had, in the nearly twelve months before arbitration, ever been charged with any misconduct from his role in the November 2000 event.

The private attorney whom the grievant consulted sent a letter dated February 28, 2001 to R__ attaching a "memorandum of law which presents our legal position regarding your proposed intent to take disciplinary action against him." The Union included that memorandum with its brief, and I am treating that as incorporated Union argument.5

That memorandum asserted that S__ had been asked by the sheriff to take a polygraph "to investigate Employee's alleged knowledge about suspected criminal offenses regarding stealing dogs and/or causing dog fighting" and that "employee chose not to undergo a polygraph examination as `requested' by the Government and invoked his privileges against self-incrimination under the Fifth and Fourteenth Amendments of the United States Constitution and the Indiana Constitution."

The attorney further wrote that

When Employee accepted employment as an Animal Control Officer from the City of Indianapolis, his application did not contain provision which required him to waive his Constitutional protection against self incrimination and/or making compulsory investigatory statements as a condition and/or requirement of employment.

This last argument is simply incorrect, and suggests to this arbitrator that the grievant's attorney did not have a copy of the Sheriff's deputy appointment letter, which S__had signed. That letter contains clear notice that deputy powers can be removed for any reason or no reason. (See below.)

The grievant did not testify that he had been directed by the sheriff to take a polygraph, but his attorney cited several court alleged to hold that compelled polygraph examinations violated and would infringe upon the constitutional protection against compulsory self incrimination. Still according to the private attorney: "... pursuant to the holdings in Schmeber v. California, 384 U.S. 757 (1966) and McDonald v. State 323 N.E.2d 436 (Ct. App 1975)"the grievant was "... clearly within his constitutional rights"under the Fifth and Fourteen Amendments to refuse the polygraph, and "to punish him for invoking his rights is wrong and unlawful."

The grievant's attorney further extensively discussed the right against "compelled self incrimination" which "protects the person from being forced to give testimony which may later be used to convict him in a criminal proceeding." The attorney then argued that

Pursuant to Indiana Code 36-8-10-10.6 a special deputy with powers of a law enforcement officer may be subject to any written limitations and specific requirements imposed by the sheriff and signed by the special deputy (emphasis added in original). Employee has not signed his acquiesce (sic) or consent to the aforesaid Marion County Sheriff's Department Manual and nor can the Manual supersede or invalidate the Employee's rights accorded him under the due process and equal protection clause of the Fourteenth Amendment and the Indiana Constitution.... .

Again and to the contrary, the grievant had acknowledged, on the paper appointing him a special deputy, that his powers could be revoked at any time without cause, notice or a hearing. (and is) subject to any written limitations any specific requirements presently imposed or to be imposed by the Sheriff, including the rules and orders of the Sheriff's Department...

S__ had signed his acquiescence and consent" to be subject to the Sheriff's "rules" and "manual."

S__ was not formally an employee of the Sheriff's Department, nor of the Indianapolis Police Department but he acted as their agent and was dispatched by them to investigate citizen animal complaints. He was a City employee whose Animal Control Officer duties required him to have the deputized powers from the Sheriff and Police Departments. The City based its discharge solely upon the fact of the loss of those powers.

The Grievant had a right as a private individual to refuse to incriminate himself. Did this right then protect him from the result of that action in his employment forum? Because he lost his deputy powers by refusing to cooperate, under fear of self incrimination, does this mean his public employer had to keep him employed? I conclude not.

My study of precedent leads me to conclude that a public employee may invoke his right against self incrimination, but that by invoking it, he or she is not thus protected against the resulting loss of employment where there is a direct relationship between the investigation or questions refused and the employee's ability to do his or her job. The Grievant was not discharged for insubordination to the sheriff, but his refusal to cooperate with that official supported loss of his sheriff (and then police) powers. He had agreed to follow sheriff's rules and agreed that his deputized authority could be removed for any or no reason. In essence, the lost powers as "just cause" for his discharge was pre-determined by the nature of his work.

The refusal to cooperate with the sheriff was a decision that S__ made as an individual to protect individual constitutional rights. But invoking constitutional privilege does not create a protected right to stay employed. There is no constitutional protection to refuse to cooperate with in effect a de facto co-employer, and the source of his authority to perform the duties for his actual employer. Protection against self incrimination is not protection of right to public or private employment. It is a private right available when criminal charges are possible.

I agree with the following reasoning applied also in the public sector:

As a general rule in the area of labor relations, an employee cannot refuse to meet with an employer or to cooperate with the employer regarding legitimate work-related conduct. To do so is an act of insubordination, subject to disciplinary action up to and including discharge.

In this case the Company sought information regarding the Grievant's conduct during work hours on Company assignment. While the Constitution protects an accused in criminal proceedings, it does not guarantee that an employee who takes the Fifth Amendment during the investigation of infractions of Company rules and policies will continue to be employed. (Arbitrator Penfield, in re Illinois Power Co., 84 LA 586, discussed at pp. 231 of "Evidence in Arbitration"2nd edit., Hill and Sinicropi, BNA 1987.)

 

As a public employee the grievant had a right to due process before losing his employment and he received those due process elements. He was suspended with pay or on vacation until his pre-disciplinary meeting. He received adequate notice and explanation and the opportunity to respond.

In summary, Grievant S__, while not a sheriff's direct employee, operated using deputized powers under sheriff's rules that required his cooperation and adherence. The investigation with which he refused to cooperate was directly related to his own performance of his ACO duties. The sheriff was entitled to remove the deputized powers, as was the city Police Department in this consolidated city-county form of government. The loss of these powers meant that this employee could not perform his job. On that basis, there was cause for his termination and such decision by the City was not arbitrary or capricious.7, 8

AWARD

 

The City has established just cause for discharge and the grievance is denied.

Footnotes

1 The Union argued both that the City failed to meet a contract deadline for holding the pre-disciplinary meeting, and failed to give documentation to the Union of the employee's unacceptable conduct.

2 ACOs received additional delegated police authority from the City Police Department. That delineated ACO authority also pertains to investigation of animal related incidents and complaints and issuance of citations "in Indianapolis\Marion County."

3 Notwithstanding R__'s recollection, the testimony of the grievant and a study of attendance records make it more than likely that the badge and identification were removed on February 7. The City put the grievant on two days of paid leave the 8th and 9th, after which he took his previously planned and out of town vacation. The City stipulated to this correction in dates.

4 Another minor problem is that R__ reversed some date digits and misstated a date on the notice of the disciplinary meeting. She wrote, incorrectly, that the infraction date was 1/9/01. She wrote that the disciplinary meeting would be on 1/21/01 although her own signature, as well as that of the Union and employee S__ indicating "willingness to attend"are all handwritten as 2/21/01. R__'s carelessness or perceptual difficulty, if such, are regrettable, but in this case the Union and employee clearly knew what conduct was at issue. The pre-discipline meeting took place on the date of all signatures: February 21.

5 The Union short brief states "S__ did nothing wrong. (See attached memorandum of attorney...)" The Union arguments are that 1) the pre-disciplinary meeting was untimely 2) the City should have followed progressive discipline 3) other employees who lost special deputy powers were not terminated, (i.e. disparate treatment and 4) the Grievant could have been allowed to be an animal care technician in lieu of discharge.

6 See also discussion at pp. 229-239 et. seq. Hill and Sinicropi, supra.

7 On the disparate treatment question, the Union submitted two instances of other ACOs. One (Compton) had his powers removed by the sheriff for five working days as a penalty for not appearing in court pursuant to a subpoena. The other employee (Wilden) lost no days of authority, but was put by the sheriff on a year's probation also for failing to appear in court. These sheriff's decisions had far less impact on the employee's ability to be an ACO and are distinguishable.

8 The Grievant testified that he could have been demoted to animal care technician rather than discharged. He has performed that work in the past and it does not require delegated police authority. Nothing precludes the City from hiring him into that post but any such decision is at employer discretion. I do not find that mandating it as relief on this record is called for.

 

 

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