117 LA (BNA) 897
CSMCS No. ARB-01-0050
September 13, 2002
Herman M. Levy, Arbitrator.
Whether the Grievant was properly discharged pursuant to the contract and if not, what is the appropriate remedy?
The letter of June 14, 2001 terminating the Grievant V__ and signed for the Monterey County by Jack Skillicon, Auditor-Controller, is set forth in full.
June 14, 2001
Re: Notice of Disciplinary Action
I have carefully considered the written responses provided by Gary Gray, Esquire on your behalf, and I have determined it is appropriate to proceed with terminating you from your position of Finance Manager II effective June 15, 2001 at 5:00 PM. This action is taken pursuant to Sections C. 1, C.2, and C. 10 of the Monterey County Personnel Policies and Practices Resolution, No. 98-384. (Attachment 1) The following constitute grounds for this action:
1. Abuse of, or failure of appropriate conduct for, your position
2. Unprofessional conduct
3. Breach of Trust
4. Violation of the Policy for Acceptable Use of Monterey County Computing and Information Resources
On May 11, 2001, at approximately 11:30 a.m., you informed Julie Van Hoff, Finance Manager II that you were going to conduct virus maintenance on M__'s and my computers. At approximately 12:00 p.m., she observed you in M__'s office on his computer; you appeared to be reading documents. Ms. Von Hoff left the office and returned at approximately 12:20 p.m. When she observed you still sitting at M__'s desk working on his computer, she approached you and told you she did not think it was appropriate for you to be working on his computer. You responded, “What are you, the computer police?” Shortly thereafter, you left the Office and signed yourself out to the Information Technology Department and home for the remainder of the day. (Attachment 2)
It has been determined that on May 11, 2001, at approximately 12:00 p.m. you opened and read two e-mail messages and/or documents attached thereto, on M__'s computer:
1.) C\windows\temp\paid admin leave request.doc
2.) C:\windows\temp\final proposal of discipline-vaughn.doc.
You even went so far as to copy an e-mail document, A:\paid admin leave request, on to a disk for your own use and/or benefit. (Attachment 3) Information Technology staff has confirmed this information. (Attachment 3)
M__ never authorized you to access or read his e-mail or its attachments. Of the over 100 unopened e-mails pending at that time, you searched for and read the ones related to your employment status. You contend that security is lacking in the Auditor-Controller's Office. However, it was at your insistence that all staff passwords were required to be identical.
Although you represented to Ms. Van Hoff that you were performing virus maintenance, you exceeded the scope of that statement as well as any authorization given to you as systems manager in the Auditor/Controller's Office. When Ms. Van Hoff attempted to intervene, you replied to her in a rude and unprofessional manner. The excessive length of time you remained in M__'s office is itself indicative of your activities far beyond any access granted you related to computer viruses.
Several months ago allegations concerning inappropriate behavior for a manager and preferential treatment in the hiring process and distribution of work assignments were made against you. A written complaint was filed in the County Administrative office. An investigation was conducted. The investigation has been completed and certain allegations against you have been sustained:
Inappropriate Relationship with a Subordinate
You admitted having a sexual/romantic relationship with a subordinate staff person under your direct supervision. The relationship appeared to or did occur during the time the subordinate was a candidate for a promotion in the department, and did or appeared to continue during the awarding of the promotion, a position that you also directly supervise. You, nevertheless, participated in the selection process for the promotional vacancy. You did not disclose the relationship, an apparent conflict of interest, until you were confronted about it during the investigation.
Due to your inappropriate actions, a perception was created in the office, among competitors for the promotion and otherwise, that you and/or the department engaged in preferential treatment in selecting the employee with whom you were having a sexual/romantic relationship. Additionally, your actions created the perception that you were providing preferential treatment to this same employee in the distribution of work assignments and the amount of work assigned. While these latter allegations were not sustained by the investigation, your failure to maintain appropriate professional conduct with subordinates significantly contributed to these negative impressions, to the department's detriment.
Violation of the Policy for Acceptable Use of Monterey County Computing and Information Resources
As a manager and supervisor you are responsible for ensuring that this and other County system-related policies are followed in the department. By your receipt of e-mails from department staff, you knew or should have been aware of their misuse of the County e-mail system. Several employees forwarded inappropriate and/or sexually explicit e-mails to you and others.
You are or should be aware of the Policy for Acceptable Use of County Computing and Information Resources. (Attachment 4) Your failure to act to correct this misuse and your tacit approval of these type of e-mail messages on the County e-mail system is extremely inappropriate conduct by a supervisor and is a violation of County policy.
In considering discipline against you, I have placed great emphasis on your unfulfilled role as the manager of Accounts Payable and Systems, and as a supervisor in the Auditor-Controller's Office. You occupy a highly visible position with significant responsibilities. You are expected to work professionally and appropriately with little or no supervision. This requires that the department place absolute trust and confidence in your judgment and ability to perform your job duties in a satisfactory manner.
You showed extremely poor judgment by engaging in a sexual relationship with a direct subordinate, which at the very least triggered a complaint and created an appearance of preferential treatment in the selection process and exercise of managerial authority. Several employees expressed the belief that the selection process was tainted or “rigged.” Staff lack of confidence adversely impacts morale. Addressing their concerns consumed valuable staff time. Your behavior has caused great disruption in the workplace, and negated your ability to function effectively as a manager and supervisor. Your unauthorized viewing and printing of M__'s mail messages and your attempted deception about your true activity on his computer on May 11 are major violations of the trust this Office has placed in you as well as M__'s expectation of privacy since he has never authorized you to open, read, copy and/or print any of his e-mail messages.
As a result, I have lost trust and confidence in your willingness and ability to perform your job duties in an acceptable and trustworthy manner.
The position that you occupy as a Division Chief requires my unquestionable trust and confidence in your judgment and your ability to represent this Office. Therefore, as a result of your actions, I am terminating you from your position of Finance Manager II.
The investigative report and other related materials and documents upon which this action is based were provided to you through your attorney, Gary Gray. You may make an appointment to inspect your personnel file by contacting Barbara Parker at 755-5084 during regular business hours. You may also contact Ms. Parker to arrange to return any County property you may still have in your possession, including a keycard for the Information Technology Department.
You have the right to appeal this disciplinary action, and may be represented in an appeal by a party of your own choice. Any such appeal must comply with Section C. 13 of the County Personnel Policies and Practices Resolution, No. 98-394. (Attachment 5)
/s/ Jack Skillicorn
Statement of Facts
The Grievant V__ has been employed since 1988 by Monterey County, the Employer. Most recently he served as a computer system manager in the auditor-controller's office. During his 13 year employment, the Grievant received step increases in salary, regular pay increases and was recognized in May 2001 as Outstanding Team Member of the Year. The Grievant was never disciplined or demoted during his employment.
In October 2000, an investigation prompted by the filing of a complaint by employee Sandra Jones, revealed that the Grievant had an extra marital affair with another employee of Monterey County. The Grievant, who reviewed this employee's qualification concluded and recommended with another employee's concurrence (Jill Baucom) that this employee should be promoted. The promoted employee was approved by M__, Grievant's supervisor. The investigation while concluding there had been an affair involving the Grievant and the promoted employee, found that the Grievant did not engage in any preferential treatment in the promotion/selection process.
Information concerning the investigation of the Grievant was sent by e-mail to the office of M__, Grievant's supervisor. M__ was considering Grievant's demotion as a penalty for his affair. On May 11, 2001, e-mails were sent to M__'s office discussing the investigation. The Grievant who was in charge of virus maintenance checked M__'s computer on May 11. Grievant read two M__ e-mails concerning Grievant and the investigation and printed out these e-mails. Grievant admitted reading and printing the e-mails and M__ became aware of Grievant's activities.
At times in 2000 and 2001, jokes, sexually exotic material and other inappropriate documents were sent by M__ and other Monterey employees to the Grievant and persons employed by Monterey County and using e-mail. The Grievant did not send any materials but these materials including ones dispatched by his supervisor, M__, were received in the Grievant's e-mail.
The Grievant's employment was terminated on June 15, 2001. The termination letter specified that Grievant was being discharged because of his affair, his reading of M__'s e-mail and his receipt of inappropriate e-mail at a time when the County felt that Grievant should have been aware of the misuse by others of the County e-mail system. (See termination letter, infra.)
The Employer permits management personnel like the Grievant to grieve their termination which Grievant did in having his case heard in arbitration.
The Employer contends that there is just cause for Grievant's dismissal and in a termination letter of June 14, 2001, (included in full in the Relevant Documents section of this Decision) lists the reasons for Grievant's dismissal. The Grievant, to the contrary, contends there was no just cause for the dismissal and requests a remedy for the discharge. I have carefully considered the entire record in this case and the post hearing briefs filed by the parties. I conclude that the Employer has not established just cause. The Employer has not met its burden of proof with respect to just cause and consequently I sustain the grievance of the terminated employee and recommend an appropriate remedy.
The Employer sets forth three reasons to support the termination. No reason, however, satisfies the just cause standard.
First the Employer finds that Grievant's extra-marital affair with an employee selected to be promoted provided a proper basis for the termination. There is no evidence that this admitted relationship violated any established anti-fraternization policy of the Employer. The relationship occurred during non-working time and did not adversely affect Grievant's performance of his duties. Indeed the investigation report of April 6, 2001 specifically finds that Grievant did not engage in any preferential treatment of the selected employee. The termination letter suggests that Grievant's action in the promotion/selection process shared with another employee and approved by M__ created perceptions in the office. Whatever these perceptions may be, they did not furnish an appropriate basis for termination of a long term employee nor did they establish by evidence in the record that there is just cause in this case.
Nor does the Employer's concern with respect to the Grievant's reading and printing M__'s e-mail establish just cause for the Grievant's termination. The Grievant had permission to get on M__`s computer for anti-virus work. While on M__'s computer, the Grievant admitted he read two of M__'s e-mails relating to the Grievant and that he printed these e-mails. Although the Employer does not have any rule which affords M__ privacy in his e-mails, I am not condoning Grievant reading someone else's e-mail. I cannot conclude, however, that Grievant's invasion of M__'s to computer to read his e-mail should result in his termination. By analogy, I would not approve the Grievant reading a letter on M__'s desk but I would not feel the appropriate discipline should be discharge of a thirteen year employee with no previous discipline. A warning would have been sufficient in this situation. I note in reading that the Computer Use Policy does not provide that information on county computers is private.
The third reason given by the Employer for Grievant's termination equally lacks just cause for termination. The termination letter alleges that certain inappropriate and/or sexually explicit e-mails were forwarded to the Grievant. The letter further assumes that by Grievant's receipt of e-mails from the department staff, the Grievant should have been alerted to the misuse of the e-mail system. No action was taken by the Employer against those sending the inappropriate e-mail including M__. The Employer only disciplines the Grievant who received the e-mail sent by others and his discipline is termination from his job. This action is not only unfair to the Grievant but there is not just cause for his termination. The Employer's conclusionary [sic] remarks about breach of trust, abuse of position, and harm to public service are not established and are not substitutes for required just cause. I find no lies, misconduct, or dishonesty in Grievant's testimony at the arbitration hearing which would require that he not be reinstated as part of my proposed remedy in this case. The Employer's reliance on Association of Western Pulp and Paper Workers v. Rexam Graphic, Inc., 221 F.3d 1085 [165 LRRM 2137] (C.A. 9, 2000) is strained and misplaced.
Since there is no just cause for Grievant's termination, his remedy is reinstatement with back pay and full benefits. Pursuant to many other arbitral decisions, I would not provide interest on the back pay.
I would recommend to the Board of Supervisors that Grievant be reinstated with back pay and appropriate benefits because the Employer has failed to establish just cause for his termination.
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