Port Arthur Police Officers Assn.
117 LA (BNA) 760
July 20, 2002
Harold E. Moore, Arbitrator.
Was the Grievant terminated for proper cause? If not what is the proper remedy?
On July 13, 2001, C__ complained to the Port Arthur Police Department that the Grievant sexually assaulted her. The Grievant was indicted by the Jefferson County Grand Jury on September 20, 2001 and accused of sexual assault, which is a second degree felony. He was placed on Temporary Suspension on the same day. The Grievant was tried and found not guilty of the offense of Sexual Assault on February 28, 2002. He was Indefinitely Suspended (terminated) on March 25, 2002.
The indefinite suspension letter charges the Grievant with eight violations of Civil Service and Department Rules, which may be summarized as follows:
1. Conduct prejudicial to good order.
2. Lack of good moral character.
3. Unbecoming Conduct on or off duty.
4. Immoral Conduct.
5. Public lewdness.
6. Allowing a condom wrapper to be thrown in a parking lot of a public park.
7. Throwing a condom out of his car onto a public street.
8. Intentionally, knowingly or recklessly rolling a vehicle window up on C__ causing injury or pain without her consent.
The hearing developed the following facts:
After completing his work shift, the Grievant went to a bar and met C__ who had come to the bar with her friend who was referred to as her “God sister”.
The Grievant and C__ consumed alcoholic beverages. According to the Grievant they agreed to “hook up” after C__ would go home with her God sister. After several stops by C__ and the God sister at convenience stores, C__ went into her house.
Shortly after C__ arrived at her house, the Grievant drove up in front of C__ 's house. C__ left her house and entered the Grievant's truck. The Grievant drove to a public park at Pleasure Island making several stops at intersections. The park was closed, but the Grievant entered the park through the “exit do not enter” opening. The public park is within the Grievant's normal patrol area. The Grievant parked his truck in the parking lot adjacent to a playground.
According to the Grievant, he had consensual sex with C__ initially in the front seat of the truck and a second time in the back seat of the truck. According to C__ they only had sex one time and that was in the back seat of the truck. C__ removed her clothes prior to getting into the back seat. C__ testified in the criminal trial that she was not raped, and she acknowledged that fact in the arbitration hearing. The Grievant and C__ both acknowledged that they had engaged in consensual sexual intercourse on several occasions prior to July 13, 2001.
According to the Grievant during the sexual encounter he was playing with the automatic window device and C__ 's head fell out the window. According to C__ the Grievant deliberately rolled the window up causing pain to her neck and causing her to bite her hand. According to the Grievant, C__ threw the condom wrapper out of the window. C__ maintained that the Grievant told her to throw the condom wrapper out of the window onto the playground parking lot. After the sexual encounter at Pleasure Island, the Grievant drove C__ home. As she exited the truck, he kissed her on her cheek and she went into the house.
C__ 's God sister drew a bath for her and she fell asleep in the bathtub. Later in the day C__ 's and the God sister mentioned the incident at Pleasure Island to the baby sitter who worked for the City. Twelve hours after returning home C__ went to the police station and reported the matter. C__ submitted to a SANE examination, which is administered to rape victims, which indicated that she had three abrasions in the vagina. The report also reflected under “Clinical Impression” that the terms and words circled were “Alleged Assault, strain and neck.”
When confronted with the accusations, the Grievant went with the investigator to retrieve the condom wrapper at the playground parking lot, located the used condom on a City street, furnished the clothing he was wearing that night for investigation, and relinquished his vehicle to the Police Department's crime lab.
The City argues that the criminal trial of the Grievant dealt with one allegation of sexual assault. They point out that the burden of proof in a criminal trial requires that the State prove that a crime was committed beyond a reasonable doubt. Whereas, this case involves a human resources or industrial relations matter and is conducted under the rules and the regulations of Chapter 143 of the Texas Local Government Code and the Collective Bargaining Agreement between the Employer and the Union. The arbitrator is not obligated to accept the decision of other tribunals, for if he or she were to do so, there would be no need to have a hearing. (City of San Antonio and CLEAT [D__ ] AAA 71 390 00161 96 [September 15, 1997] Moore). They emphasize that the Trial Judge was not presented with the same evidence that the arbitrator was presented with and therefore the arbitrator should make an independent judgment of the evidence.
The City also asserts that there were considerable inconsistencies between the Grievant's version of what occurred and that of C__ . This raises a cloud of suspicion upon the truthfulness of the Grievant. The City points out that truthfulness is an important element of performing police work.
The City maintains that the Grievant admitted he had sex with C__ in a public park in an area typically within his duty beat. He also admitted that he did not attempt to prevent C__ from throwing the condom wrapper onto a public park, nor did he pick it up after she threw it out of the vehicle window. These actions constituted littering. Also, the throwing of the used condom out of the vehicle window onto a public thoroughfare reflects his lack of knowledge of State law and City ordinances, as well as his disregard for the integrity of the streets and parks in a primarily residential area.
The City further argues that the Grievant perpetrated a physical assault upon C__ when he intentionally rolled her neck up in an automatic car window. They point out that C__ testified that it was no accident. She also testified that it caused her pain and injury to her neck as well as to her hand. The City points to the discovery of C__ 's fingerprint on the driver side door rain deflector of the Grievant's vehicle. The City also points to the numerous witness who testified that they observed marks on C__ 's neck and hand that gave credence to her description of what occurred.
In addition to the above, the City emphasizes what they characterize as the demeaning manner of speech of the Grievant as claimed by C__ during the criminal trial. The City maintains that these actions are consistent with the power and control issues that are associated with sexual assault. The Grievant is a large person and C__ is a very small woman. Because of this difference in stature C__ followed his instructions.
Concluding its argument, the City emphasizes that the three-member disciplinary review board recommended to the Chief of Police that the Grievant be indefinitely suspended. Other officers opined that the Grievant should be terminated. And, due to the fact that the Grievant had only been in the department seventeen months when the incident occurred, termination was proper.
Counsel for the Grievant argued that the Grievant admitted he had consensual sexual activity in his private vehicle in a public park in the early morning hours of July 13, 2001. However no one heard it, viewed it, or complained about it to anyone, except for C__ . It is pointed out that the City was able only to prove what the Grievant had admitted in his statement and testimony. In addition it was argued that such affairs exist in the private lives of countless individuals everyday. Counsel gave examples where it occurred with other members of the Police department and they were not terminated.
The Grievant pointed to the credibility and motive of C__ . His counsel emphasized that credibility is determined from the consistency in a witnesses 'testimony compared with prior statements, testimony, and the witnesses' demeanor while testifying, motivation and reputation. The following discrepancies were emphasized. C__ had engaged in sexual activity on several occasions with the Grievant just prior to the incident. C__ asked for money to pay her light bill, and the Grievant had refused her request. During the trial she admitted that she was not behind on her light bill and it was a lie to see if the Grievant would give her any money. C__ testified that she went from her house to the truck because the Grievant was honking the horn. The other witnesses testified that they did not hear any horn honking in front of the house before C__ got in the vehicle. C__ said she did not have her purse when she got into the vehicle. Other witnesses stated she took her purse with her when she went from the house to the Grievant's vehicle. C__ testified that she was not smoking when she got out of the truck after returning from Pleasure Island. C__ 's God sister testified that she was smoking.
The Grievant points out that the medical records do not reflect that C__ had any marks, swelling or redness on any area of her throat, neck or her back. It is argued that the photographs of C__ 's neck and her left hand do not reflect any marks consistent with being rolled up in the driver's side window of the Grievant's vehicle for three to five minutes as she claimed in her testimony. The Grievant also points to C__ 's testimony that it was her right hand that was in her mouth when she claimed that the Grievant rolled her up in the vehicle window when reports reflect that she initially claimed that it was her left hand.
The Grievant maintains that the SANE examination only revealed that C__ had tears in folds of her inner vagina, consistent with both force penetration and normal sexual activity. Further they point out that C__ testified that she was not complaining about the sex she had with the Grievant. Therefore, the sexual activity was consensual.
Counsel for the Grievant argues that the other offenses are mala prohibita—criminal laws stemming from outlawed activity, which is not morally reprehensible under the common law, but are, violations of state law and city ordinances. The admissions by the Grievant do not make him a morally deficient individual. Further it is argued that having sex in the park and/or having an affair is not consistent with the prior history of discipline in the department. The Grievant agrees that he engaged in a series of poor personal choices and he accepts the blame. The Grievant requests that he be reinstated with all back pay and accumulated benefits.
Initially the underlying charge against the Grievant, involving the aggravated kidnapping and sexual assault, must be addressed. The Jefferson County Criminal District Court acquitted the Grievant of the felony offense of sexual assault. The City is correct in its argument that the burden of proof in a criminal case requires that the state prove its case beyond a reasonable doubt. This is more difficult than the preponderance of evidence or clear and convincing evidence requirements that is generally found in arbitration cases involving industrial relations or human resource matters. (Fn. 1) Therefore, the fact that the Grievant was acquitted in the criminal aspect of the charge is not dispositive of the matter.
Under the lesser requirements of the preponderance of the evidence or clear and convincing rules, the City failed to show that the sexual incident was non-consensual for the following reasons: The alleged victim testified during the criminal trial that she was not raped and verified the same in her testimony in the arbitration hearing. The alleged victim testified that upon returning home from the bar at approximately 2:00 AM she went into her house where she was with her God sister and an adult male baby sitter. She left the safety of her home to talk with the Grievant. The two City witnesses disputed her testimony that she did not take her purse with her. If we are to believe the two non-participating witnesses that the alleged victim took her purse with her when she left the house this is an indication that the alleged victim intended to go with the Grievant. The alleged victim testified she got into the Grievant's vehicle on the passenger side. If her motive was to talk to the Grievant it would appear that she would do so on the driver's side. Her explanation that she did not want to be out in the street because of traffic is not plausible at 2:00 AM on a residential street. Her explanation that she could not get out of the vehicle while she was being driven to Pleasure Island is questionable. She admitted that the Grievant was required to make several traffic stops before crossing the bridge to Pleasure Island. She did not avail herself of the opportunity to open the vehicle door and exit.
When questioned at the trial and the arbitration hearing, she gave as the reason for performing various acts such as, undressing herself, getting into the back seat of the vehicle, and throwing the condom wrapper out of the vehicle window as “He told me to!” is difficult to comprehend that they are acts of a non-consenting individual.
These are but a few of the discrepancies in the statements made by the alleged victim. Contrasting her statements with those initially given by the Grievant that the two of them engaged in consensual sexual activity when he was first accused seems to bear out his description of the episode. Although the Criminal District Court of Jefferson County, Texas did not give any reasons for finding the Grievant not guilty of the offense of Sexual Assault, this arbitrator, after hearing and reviewing a substantially larger quantity of testimony and documents, concurs in that decision and finds that the Grievant and the alleged victim engaged in consensual sex.
Regarding the injuries the alleged victim claimed she received during the episode, the evidence reflects that the medical reports do not definitively reflect that there were marks on her neck and arm. I have studied and examined the excellent and detailed photos submitted by the City. Exhibits 23, 24, and 25 have the clarity to distinguish the hair on the neck and the arm. Perhaps it may be the skin tone of the alleged victim but bruises and marks are not discernible. This is in contrast to City witnesses who testified that they observed handprints on the alleged victim's arms. There also is contradicting testimony that the alleged victim initially claimed that her left hand was injured when the window was rolled up, yet at the hearing she maintained that it was the right hand that was injured. The SANE examination revealed three abrasions in the alleged victim's inner vagina. The City's expert witness testified that these could have occurred during exuberant sex. The alleged victim's God sister testified that after the alleged victim filed a complaint she began inquiries regarding victim's compensation. The alleged victim told her that she would have so much money that she wouldn't know what to do with it. When there are such discrepancies equity dictates that the doubt must be resolved in favor of the accused.
The other charges against the Grievant involve littering, public lewdness, immoral conduct and the lack of good judgment. As to the littering charge the Grievant admitted he threw the used condom on a public street. He also admitted that he did not prevent the alleged victim from throwing the condom wrapper out of his vehicle window. It is difficult to sustain a public lewdness charge when no one saw the Grievant and C__ in the park, particularly when a complaint has not been filed. In our current society it is difficult to define immoral conduct and to what the extent an employer may direct what an employee may do when the employee is off duty.
The City has shown from the preponderance of the evidence that the Grievant exercised poor judgment. The City has the right to expect police officers to exhibit respect for State laws and City ordinances. The Grievant had previously been counseled regarding drinking in bars located in his work beat. The location of the sexual encounter with the alleged victim occurred within his work beat. He gained entrance to Pleasure Island by nature of his knowledge of his work assignment. The Grievant's actions brought unwelcomed publicity upon the Department. All of these offenses warrant progressive disciplinary action but they do not warrant termination.
The Indefinite suspension shall be reduced to a one hundred and twenty (120) days suspension without pay.
1. See How Arbitration Works, Elkouri & Elkouri, 5th Edit., pp. 905 - 908, and 1999 Suppl. p. 143 (BNA Books).