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Arbitration Award
City of Coweta, Oklahoma
and
Fraternal Order of Police
Lodge 192
117 LA (BNA) 1547
FMCS Case No. 02/11822-8
November 19, 2002
Stephen M.
Crow, Arbitrator, selected by parties through procedures of the Federal
Mediation and Conciliation Service
Issue
Did the City of Coweta have just cause to
terminate Police Corporal S__ ? If not, what is the appropriate remedy?
Background
Corporal S__ was hired by the City of Coweta as a
part-time police officer in May 1996. In July 1996, S__ became a full-time
police officer. S__ was promoted to corporal in October 1997 and promoted to
sergeant in March 2001. In March 2002, the City demoted S__ to Corporal. The
City terminated S__ in April 2002 for substandard performance and failure to
pass an examination related to remedial training. S__ filed a grievance contesting
his termination in May 2002.
Relevant CBA
Language
Article
4—Management Rights and
Responsibilities
Section 2. Except as may be limited
herein, the employer retains the rights in accordance with the Constitution,
the laws of the State of Oklahoma, and the responsibilities, and duties
contained in the laws of the State of Oklahoma, and the ordinances and
regulations promulgated thereunder;
A. To determine Police Department policy,
including the right to manage the affairs of the Police Department, in all
respects except as stated above, including the right to plan, direct, and
control operations;
B. To schedule and assign work to
employees, including overtime;
C. To direct the members of the Police
Department, including the right to hire, terminate, suspend, discipline,
promote or transfer any employee, for just cause, of the Police
Department;
D. To determine the organization of the
Police Department, including the right to organize and reorganize the Police
Department, and the determination of job classifications and ranks based upon
duties assigned;
I. To establish and require employees to
observe reasonable rules, regulations and orders;
J. To introduce new, improved, or
different methods and techniques of operations of the Police Department, or
change existing methods and techniques;
K. To determine the amount of supervision
necessary;
N. To lay off or relieve employees from
duty; to maintain order and to suspend, demote, discipline and discharge employees
for just cause;
O. To establish new jobs, abolish or
change existing jobs, increase or decrease the number of jobs; to change
processes, products, equipment and operations.
Article 28—Out of Town
Training
Section 1. A maximum of $19.00 per day
will be reimbursed for meals, as approved by the City Manager.
Section 2. If an employee uses their
personal vehicle for traveling to out of town training, mileage will be
reimbursed at the rate of 30.0 cents per mile.
Section 3. Employer agrees to allow
employees the opportunity to attend additional CLEET [1]
training as needed. The employee shall be required to complete a Travel and
Training request form, within ten (10) days prior to the start of the training.
The Police and/or City Manager must approve the Travel and Training Request
before the additional training is authorized.
The City's Position [2]
The
discipline imposed against S__ was due to a lack of performance of his job
duties, specifically for a lack of performance that culminated during March and
April 2002.
Police Chief Derrick Palmer outlined the declining
performance of S__ by detailing his problems beginning in early 2002, at which
time an evaluation of S__’s job performance was conducted. The evaluation on
February 7, 2002, provided S__ with a plan of improvement and indicated
deficiencies in lack of motivation of his shift, failure to adhere to
department policies, and interpersonal relationship problems. A follow-up to
the evaluation was conducted by the Chief Palmer on March 8, 2002, at which
time the above noted deficiencies were again reviewed with S__.
On the same day as the follow-up evaluation with
S__, an incident occurred wherein S__’s son was issued a citation by Coweta
Police Officer Ronald Skeen. S__ confronted the officer issuing the citation.
Chief Palmer testified the incident on that date related directly to his
counseling session that morning with S__ and was an indication to him that the
counseling session had not worked. Also relevant to the incident is S__’s
testimony that the City should have “stayed out of it” when a teacher had
complained that S__’s son was driving recklessly and putting the lives of
school children in danger, thus confirming the testimony of witnesses Palmer
and Krumsiek that S__ exhibited a defiant attitude in performing his job
duties.
On March 12, 2002, S__ made comments to Officer
Kyle Roberts (a new officer) that questioned the direction previously given to
the new officer by the Chief Palmer. As a result, S__ was demoted to corporal
on March 15, 2002. The demotion occurred during an extended probationary period
and is not subject to this grievance proceeding. As a part of the demotion, S__
was assigned remedial training under the direction of Donnie Krumsiek for a
period of thirty days, with an evaluation scheduled at the end of the
thirty-day period.
S__ was involved in another incident, this time
with Officer Woody Bart. The Bart incident occurred on April 4, 2002, and is
another incident in which S__ was displaying an improper attitude and demeanor
toward his superior officers, and not performing his job duties as expected and
as counseled previously. Bart stated in part:
At this
time, I would have a hard time following any decision or order S__ would give
me. This report is not to get anyone in trouble, but to prevent bad decision
making in the future.
S__ was
provided a written reprimand for the Bart incident (in which he did not file a
grievance) and was specifically told of the department problems with his
failure to perform his duties in compliance with department standards.
On April 14, 2002, S__ was involved in an incident
concerning a traffic accident in which numerous complaints were received
alleging S__ was not performing his job duties. The scope of S__’s lack of
performance of his duties is best outlined by Christopher McDonald and Tammy
Skeen, employees of the Wagoner Emergency Medical Services. McDonald stated
that S__ was walking around the accident scene, hands in the pockets, laughing
and cutting up while victims of the accident were being air-evacuated; was
leaning on the wrecker, joking with the driver, had to be repeatedly called to
assist in moving the emergency unit in a safe manner, and did not adequately
assist others. Skeen stated that while she and others were attending to
victims, S__ was conversing, laughing, and joking with others and did nothing
to assist those attending to accident victims.
On April 17, 2002, S__ was given a verbal reprimand
for deficient reports (approximately six reports were returned to him for
correction during a three-week period) and a continuing attitude of defiance
toward Krumsiek and the department. S__ did not file a grievance concerning the
written reprimand.
At the end
of the remedial training, S__ was administered an exam concerning the topics
covered during the training and scored 20% on the exam. Both parties have
submitted reports concerning the sufficiency and fairness of the exam. S__ challenges
the exam in several ways, claiming the city violated the contract by subjecting
him to training which is not in compliance with the Council on Law Enforcement
Education and Training (CLEET). A review of the contract reveals there is no
prohibition against non-CLEET training and instead, as reflected by Article 4,
Section 2J, the City retains the right to introduce new or different methods of
operations. Further, S__’s reliance on the contract provision concerning “Out
of Town Training” is misplaced. Article 28, as stated above, is a provision
wherein the City agrees to allow out of town CLEET training opportunities and
nowhere limits training to either “new” employees or to CLEET training as
argued by S__.
Additionally,
as stated by Instructor Carla Martin on behalf of the City, the exam given to
S__, even if adjusted for the concerns raised by S__, still resulted in a
failing score that leads only to the conclusion that S__ made little or no
effort in his remedial training, again confirming the attitude by S__ that only
he would determine his job duties and assignments, and that only he would
determine how he was to perform his job.
Based upon all of the above, Chief Palmer
recommended termination of the employment of S__. He stated that his action was
based on S__’s continued lack of desire and failure to perform, his defiance of
authority, his resistance to change, and the inordinate time required to
supervise him.
S__’s
allegation in the hearing that the City terminated him because of his role in
the Fraternal Order of Police as President of the Local Union and his role in
previous arbitrations was not supported by evidence. S__ attempted to link his
discipline to his testimony in a previous arbitration hearing. However, the
hearing was held in November 2001, and no adverse action was taken against S__
until March/April 2002.
S__ also
alleged that his termination was due in part to Chief Palmer's lack of
tolerance for those who resist his decisions. In truth, S__ does not like the idea
of Chief Palmer making decisions for the department and does not think it fair
for the Chief to take action against those who “resist” his directives. All of
which confirms S__’s “defiant” attitude commented on by witnesses Palmer and
Krumsiek. What's more, S__’s testimony confirms his continuing attitude that he
and he only will determine his job duties and assignments, and he alone will
determine how those job duties will be performed.
The City
would present the following arguments and authorities to support its position
that the punishment imposed is warranted pursuant to the terms of the parties'
collective bargaining agreement.
Just Cause
Did Exist for S__’s Termination
This arbitration
should be resolved in favor of the City for several basic reasons. First, the
evidence is clear S__ was aware his employment was in jeopardy as evidenced by
his demotion, his numerous reprimands, and the directive that he report for
remedial training to address the very problems that had been discussed during
the evaluation process. Second, the continuing and repeated conduct by S__ was
caused by S__ and his refusal to perform his duties, all as requested by the
Police Chief. Third, the termination should be upheld because the punishment
imposed is clearly within the range of punishment allowed by the parties'
collective bargaining agreement. As Arbitrator Barron has previously held,
“...arbitrators should be slow to substitute their judgment for that of the
Company as to the appropriate level of discipline. Only where the Union can
show that the Grievant has been subject to disparate treatment or where the
level of discipline seems unreasonable under all of the circumstances should an
arbitrator exercise the power to alter the level of discipline imposed.'' [3]
The
discipline imposed here is reasonable because (1) S__ had been provided
numerous opportunities to perform his duties in accordance with the
requirements of the Coweta Police Department; (2) repeated failures to perform
his duties were noted during the remedial training process; (3) the claims by
S__ that there was an anti-union motive are not supported by any evidence; (4)
the true motive for the discipline directed toward S__ is acknowledged by S__’s
own testimony concerning the desire of the Police Chief to direct the
department, and to deal with those who refuse to follow the directives of the
department; and (5) the past disciplinary history for S__ supports the
conclusion that progressive discipline was being followed and that S__ offered
no hope of complying with the job requirements of the department.
Additionally,
the argument by S__ that the punishment given to him was for a violation he did
not think would lead to termination, and that was not specifically outlined for
him does not justify S__’s conduct in continuing to refuse to perform his job
duties. As stated by Elkouri and Elkouri:
Although
previously having been lax [in the enforcement of rules], an employer can turn
to strict enforcement after giving clear notice of the intent to do so.
The defiance
by S__ was clearly in response to the Chief's attempts to have a more
professional department, and to require a higher standard of performance by all
police officers. Considering the totality of the circumstances involving S__,
the number of complaints by employees and non-employees, all during remedial
training, termination was the only reasonable solution for the Chief in
managing the department.
The Punishment
of Termination is Appropriate
The City
proposes that termination of S__’s employment is the appropriate remedy for the
simple reason that S__ would not reform his conduct or comply with department
directives, and had given every indication he had no intention of following the
directives given by the Chief.
Although
terminating employment can be considered the most severe and harsh punishment
available, arbitrators have been reluctant to question the decision of the
employer if the decision is reasonably based. Arbitrator Richard E. Allen
stated as follows in upholding the termination of a police officer's
employment:
An
Arbitrator can not overrule a discharge where there is no evidence the employer
acted in an unreasonable or unfair manner. Repeated acts of carelessness may
warrant a discharge without the application of “progressive” discipline. The
failure of a police officer to secure her handgun in a safe place is so serious
as to justify discharge without repeated warnings and suspensions.
The conduct
by the officer in the Cleveland case involved negligence in losing a firearm on
three different occasions. Here, the conduct by S__ in refusing to perform his
job duties, continually having confrontations with co-workers, and engaging in
a course of conduct of defiance toward the department is something more than
mere negligence. As stated by Arbitrator Whitley P. McCoy:
The only
circumstances under which a penalty imposed by management can be rightfully set
aside by an arbitrator are those where discrimination, unfairness, or
capricious and arbitrary action are proved—in other words, where there has been
abuse of discretion. [6]
Although S__
claims unfairness and discrimination, the ultimate cause of S__’s disciplinary
problems was conduct by S__ including an attitude of confrontation, defiance,
and a refusal to perform the basic duties of a police officer.
The FOP's Position [7]
Due
Process
The City's
termination of S__ must be reversed based upon City's violation of S__’s right
to due process. Failure to provide due process violates the contractual just
cause requirement of the parties' collective bargaining agreement. The root of
due process is that an individual be given an opportunity for a hearing before
he is deprived of any significant property interest. The employee is entitled
to oral or written notice of the charges against him, an explanation of the
employer's evidence, and an opportunity to present his side of the story. This
is required to provide a check against mistaken decisions.
The City did
not give S__ a pre-determination hearing or notice of the reason he was being
terminated before he was terminated. The City did not give S__ a copy of the
remedial training packet before they terminated him. Likewise, the City did not
give S__ a chance to respond to their allegations that he was poorly
performing.
The City alleged that S__ was terminated based
upon his “past substandard performance” and the “results of the remedial
training.” However, before and after S__ was terminated, the City did not
specifically explain its reasons for his termination. They did not list rules
violated or particular infractions by S__ until the hearing.
The Remedial
Training and Test
The remedial
training process and the decision to discipline S__ based on the remedial
training violates just cause. Just cause requires that an employee must be
given notice of possible or probable discipline before discipline is imposed.
S__ was not informed before being assigned to remedial training that if he did
not pass the test it could lead to discipline. Had S__ understood that his
career in law enforcement depended upon passing the test, he would have been
more prepared for the test. In short, it was improper to terminate S__ since he
was not adequately appraised of the consequences of failing the test.
The City
violated the CBA by subjecting S__ to remedial training. The CBA expressly
grants the City the right to be “the sole judge of the qualifications of
applicants and training methods of new employees.” The contract does not grant
management the right to establish training methods for existing employees.
Regarding training of employees, the parties expressly agreed that the City could
send its officers to CLEET courses. The remedial training of S__ was not CLEET
accredited. The CBA grants the City the right to design training for new
employees and expressly limits management's right to train other employees by
CLEET training only. Therefore, the non-CLEET remedial training violates the
contract and cannot serve as a just cause reason for termination of S__.
Chief Palmer
has the authority to require that an officer attend CLEET training and could
have enrolled S__ in CLEET training rather than the remedial training. S__ has
760 hours of CLEET training and had requested training specific to his needs.
However, the Chief refused his request. That the Chief opted for in-house
remedial training instead of CLEET training infers that the Chief wanted to be
able to determine the outcome of the training. No other employee has ever been
given remedial training and a test in the past.
The Chief
assigned Donnie Krumsiek the task of providing remedial training for S__.
Krumsiek was authorized by the Chief to conduct remedial training on three
specific areas: supervision, ethics, and interpersonal relationships. However,
Krumsiek's first week of training was on changes and innovations in criminal
justice. Krumsiek stated that he was never informed of the purpose of the
training. The Chief stated that he did not know what went on during the
remedial training. When these two facts are put together, it is difficult if
not impossible to conclude that S__ received any sort of pertinent, proper, fair
or just treatment with regard to the remedial training.
According to
Elkouri arbitrators require that tests used in determining ability must be
specifically related to the requirements of the job, fair and reasonable, administered
in good faith and without discrimination, and properly evaluated. [8] As for the first factor, there is no dispute that
none of the testing materials were based on any policies of the Coweta Police
Department. It can hardly be claimed as fair to discipline S__ for testing
materials that are not department policy.
As to the
second factor, a test will be considered fair and reasonable if the questions
are not unduly difficult. Krumsiek derived his testing information from
intermediate college material in criminal justice. S__ does not have a college
degree or education. CLEET management instructor Byron L. Boshell examined the
testing materials and the test and determined, based on his 17 years of CLEET
instructor training, that, “I would hope [the student] possesses a college
degree. The material deals heavily with theories in management and not basic
concepts.” [9] Boshell also stated that the
test, “[was] comprised almost solely of fill-in-the blank questions [giving]
the appearance of a test designed to generate failure.” Clearly S__’s remedial
training and testing were not fair and reasonable.
During week
two of training, the outline contained information on Fiedler's Contingency
Model. Krumsiek stated that if someone had four weeks to study that model, they
would know something about it. But Krumsiek only gave S__ 14 days to study the
model. Even the Chief was not acquainted with Fiedler's Contingency Model. Yet
S__ was tested on that management theory. Again, the training was not fair and
reasonable.
The test was
not properly evaluated. The impropriety of the test is evident from the
testimony at the hearing.
The Chief
did not agree with Krumsiek's “correct” answer to question number 1 on the
test.
Question 3
on the test was taken from Krumsiek's study material referring to “purposive
change” as “planned change.” S__’s answer to question 3 conformed with the
study guide, however, he was not given credit for the correct answer.
The Chief
agreed that “Officers must change their attitudes, actions, and the way they
think in order for change to be successful.” This was the answer S__ gave to
question 5 of the test, yet S__ was not given credit for his answer.
The Chief
agreed that an effective leader should have honesty, integrity, ability to
direct others, ability to discipline, and ability to listen. These are the
answers S__ gave to question number 9 of Krumsiek's test, yet S__ did not get
any credit for his answer.
The Chief
believed that it is important for managers to seek employees with honesty,
integrity, and morality. That is the exact answer S__ gave to question number [10] of Krumsiek's test, yet S__ did not get credit
for that question.
Krumsiek
tested S__ on a March 24, 2002 “directive” on question number 19. Even though
the directive was read to him, question number 19 was unfair since S__ was not
given a copy of the directive.
If the
unfair question related to Fiedler's model and the other six unfair questions
discussed immediately above were removed from the testing situation, S__’s
score would have increased from 41% to 55% correct. However, the test had other
questions which were inappropriate. The City's own testing expert and the FOP's
CLEET expert agreed that five questions on the exam, different from those
already discussed, were unfair. Removal of those questions from the test raises
S__’s score to 73% correct. That is a passing score. In short, the testing
materials were unfair and unreasonable.
In addition, the test was not fairly administered.
Krumsiek specifically informed S__ that he would be tested over the “21
Standards of Conduct.” In fact, Krumsiek informed S__ that the “majority” of
the test would be on the 21 standards of conduct so S__ should study “hard” on
those standards. However, the test did not contain any questions on the 21
standards of conduct. It was not until S__ was handed the test, that Krumsiek
informed him that the 21 standards were not on the test. Since S__ had spent
the majority of his time studying the 21 standards, he asked for additional
time to prepare for the test. Krumsiek refused S__’s request. Krumsiek's act of
misleading S__ about test content was not fair or reasonable.
In all, S__
was scheduled for four weeks of remedial training under Krumsiek. Of that time,
Krumsiek spent only 2.5 to 3 hours of classroom time with S__. Krumsiek had no
first hand knowledge of S__’s job performance and did not discuss ways that he
could improve his performance. Additionally, Krumsiek had a known personality
conflict with S__. S__ advised the Chief of the conflict and expressed his
concern about being trained under Krumsiek. The Chief informed S__ that he
would monitor the training, but did not.
Krumsiek was biased against S__ because S__ was
the President of the FOP. Krumsiek quit the FOP and expressed his belief that
the police department would be better off without the FOP. It can hardly be
fair to place S__, the FOP president, in remedial training under a sergeant who
is known for dislike of the FOP under S__’s leadership.
Prior to the
remedial training, Corporal S__ outranked Krumsiek. Krumsiek was promoted to
sergeant sometime during the remedial training. Corporal S__ was demoted from sergeant
shortly before the remedial training. Clearly, the Chief's placement of S__
under Krumsiek for training was designed to humiliate S__. Krumsiek was not
even a sergeant when he was assigned the job of remedial training. Krumsiek was
only a sergeant for approximately the last two weeks of the remedial training
period. Essentially, the City placed a rookie sergeant in charge of training an
experienced officer.
All in all,
the City's termination of S__ for the results of the remedial training was not
just.
Ambulance
Incident
In April
2002 there was a three-car accident on Hwy 51 in Coweta. In the performance of
his duties, S__ took appropriate action related to the condition of a driver of
one of the vehicles and the condition of two occupants in a second vehicle.
There were three wreckers on the scene. The only time S__ spoke with the
wrecker drivers was to explain to them which accident he wanted them to respond
to. S__ did not walk around the scene laughing. Even the City's Attorney recognized
that with all S__ was involved with there was not a lot of time to just “hang
around.”
In April
2002, Krumsiek received two statements from Wagner EMS personnel Tammy Skeen
and Christopher McDonald. Tammy Skeen is Officer Ron Skeen's wife. Although not
noted in City's letter of discipline to S__, at the hearing the City made
reference to the two complaints. It is an established fact that an employer
cannot give reasons for a discharge at the time it is executed and then alter
or add to those reasons at a arbitration hearing.10
It was
improper for the City to point to these complaints and infer that these were
part of the basis of its termination of S__. It is undisputed that S__ was not
disciplined for the ambulance incident. At the time of the complaints, S__ was
not informed that he could be subjected to discipline as a result of the
complaints. An employee should be notified at the time of the complaint that
such complaint could lead to disciplinary action. The City is trying to alter
its reasons for termination after the fact. Any decision to terminate S__ based
on the ambulance complaints is unjust.
Krumsiek
asked S__ to respond to the complaints but refused to give S__ copies of the
written complaints. An officer should be given copies of complaints against him
before he is asked to respond to the complaints. To fail to do this and then
discipline the officer for the complaint would be improper. Krumsiek did not
tell S__ that the complainants had alleged that he was walking around with his
hands in his pockets and laughing. Krumsiek could not remember what he told
S__.
It is
impossible to respond to specific allegation without being informed of those
allegations. S__’s response reflects the limited information he was given. He
had no opportunity to refute the allegations that he was simply walking around.
The first time S__ saw the complaint was two weeks prior to the arbitration
hearing after the FOP requested discovery of the item from the City. Before S__
was terminated, he was not given a chance to respond to the specific
allegations, nor was he told the result of City's investigation of the
complaints. This is intentionally stacking the deck against S__ by not fully
informing him of the allegations against him.
Further,
neither Tammy Skeen nor McDonald filed any written complaint prior to Krumsiek
approaching them and telling them that they would have to file a written
complaint. Krumsiek and Ron and Tammy Skeen are good friends—they go boating
and drinking together. The complaints from the EMS drivers should not be given
any weight. First, such statements are hearsay. The City has the burden to
prove just cause, yet did not call either complainant. The veracity of the
complainants' statements was not subject to cross-examination. Only S__ and
firefighter Randy Woodward testified under oath as to what happened at the
scene.
Second, the
statements were only given after Krumsiek asked for the statements. The
statements were not given voluntarily. Krumsiek created the evidence against
S__ by requesting that the ambulance drivers write out a complaint on S__. This
is further reason to not give the statements any weight. If the City desires to
base its termination decision on these complaints, it should have called the
complainants in to personally testify about their concerns. If the EMS drivers
were sincerely concerned about S__’s behavior, they should not have to be told
to write down their statement. Clearly Krumsiek was trying to create witnesses
and complaints against S__.
Even taking
the allegations in the complaint on its face, it is clear that they do not
provide a just basis to terminate S__. Krumsiek stated that regardless of the
complaints from ambulance drivers Skeen and McDonald, there was “nothing to
prove what had happened.” Firefighter Randy Woodward was at the scene of the
April 14th accident worked by S__ and the Coweta Police Department. There were
multiple vehicles involved in the accident. Firefighter Woodward assisted with
the extrication of occupants of a van. S__ remained with Woodward at the scene.
S__ helped Woodward get a man out of the van and air lifted out and stayed with
Woodward at the van to help extricate a female from the van. S__ was never
inattentive while at the scene and remained helpful to Woodward.
Job
Performance Level
The City alleged that S__’s performance level was
substandard. The only evidence of such comes from reports completed by
Krumsiek. It is undisputed that while on patrol, S__ writes as many tickets as
he can for traffic violations. Nevertheless, according to Krumsiek, S__ was
under performing because S__ made 15 traffic stops in the first week of
remedial training. Krumsiek's analysis was based upon a review of shift logs.
As an initial matter, S__ was never informed that if he did not meet or exceed
an average number of tickets per day that he would be subjected to discipline.
It is not just to terminate S__ for not meeting a quota that was never
announced.
By
Krumsiek's calculation, the average number of traffic stops for the first week
of training was 3.2 stops per day per officer. But that number varies from week
to week. Krumsiek's number of stops “requirement” is not a “number that is
given by supervision or administration.” The Chief does not even support a
system that recommends that an officer should write a certain number of tickets
per day. The Chief would not require such. Therefore, how can it be fair to
hold S__ accountable for a number that is not endorsed or required by the Chief
or the City administration?
The number
of stops that Krumsiek expected S__ to make each week is not known until after
that week is over. Elkouri writes that when management chooses to apply a rule
rigidly to the point of meeting its violation with discharge, there should be
no doubt in the minds of the employees as to the existence and nature of the
rule and that just cause requires reasonable rules or standards, consistently
applied and enforced and widely disseminated. [11]
Krumsiek evaluated S__ upon a rule that does not exist and used a system that
deprives S__ of even knowing what the quota for stops is until after the fact.
The City disparately disciplined S__. Elkouri
writes that it is generally accepted that enforcement of rules and assessment
of discipline must be exercised in a consistent manner; all employees who
engage in the same type of misconduct must be treated essentially the same. [12] Based on Krumsiek's analysis of 3.2 citations
per day, an officer must write 64 citations per month. Krumsiek stated that he
analyzes all of his officers’ levels of citations per day. Only two officers in
the entire Coweta Police Department had over 64 citations per month from March
2002 through June 2002. In March and May, twelve officers out of thirteen were
below 64 per month. In April, eleven out of twelve officers were below 64
citations per month. In June, eight out of ten officers were below 64 citations
per month. Other than S__, no officer was terminated for citation levels. There
was not even a recommendation for any disciplinary action against any officer
other than S__.
Krumsiek
runs a monthly analysis of citations per month. He was aware of the fact that
only one to two officers were meeting his arbitrary citation level requirement,
yet chose to focus on S__. This is the epitome of bad faith. Krumsiek simply
conducted a biased and flawed analysis. Even Krumsiek did not issue 64
citations per month during the time he scrutinized S__. Krumsiek complained
that S__’s performance was going downhill in March and April. Krumsiek's
performance went downhill, too, during those same months. Krumsiek received no
disciplinary action whatsoever for his declining performance level. The City's
reliance on Krumsiek's fatally flawed citation analysis is not just and does
not support S__’s termination.
Krumsiek
performed a time accountability study on S__. The City's study depicts the
amount of time that Krumsiek was not able to account for during each of S__’s
shifts. However, City's analysis is flawed. Krumsiek used the dispatch log to
run his analysis and he did not account for any time that S__ spent on patrol.
An officer can spend a majority of his shift on patrol. The dispatch log does
not reflect the time an officer spends on patrol, therefore, Krumsiek's
analysis would not be accurate. The dispatch log does not record how much time
an officer spends investigating crimes, driving on patrol, or other tasks other
than writing tickets.
Even if
Krumsiek's accountability study were an accurate depiction of work performed,
it is unfair to discipline S__ for such a study. During the same time period
analyzed by the City, Krumsiek was on duty 18 days but only worked a total of a
little over 12 hours. That leaves 132 hours unaccounted for by the City's
method of calculation. Obviously, Krumsiek is still working at the Department;
in fact, he was promoted to sergeant during this time period. Officers Gist and
Skeen similarly worked too few hours according to the time study.
There is
simply no evidence that S__’s performance level was on the decline. For
instance, the City has failed to show that S__’s performance level is less than
it was one year ago or two years ago. Rather, the City merely points to its
“documentation” for part of March and April 2002. The City ends the law
enforcement career of S__ based upon a flawed analysis conducted for a six week
period of time; six weeks out of six years of service.
There is no
dispute that if there were a comparison of officers, it would be only fair to
compare officers of like rank, i.e., corporals to corporals, sergeants to
sergeants. S__ was a sergeant for the year 2001. There is no dispute that
Sergeant S__ wrote more citations than the other sergeant (Gist) for that year.
S__ also filed more reports and made more arrests than did Sergeant Gist.
Sergeant Gist did not receive any disciplinary action for performing at a
lesser rate than S__. Obviously, of the only two sergeants in the Department,
Sergeant Gist would be performing below the average for sergeants.
Prior
Discipline
S__’s disciplinary record does not support the
City's decision to terminate him. The decision disregards the principles of
progressive discipline.
Progressive
discipline is a system of addressing employee behavior over time, through
escalating penalties. The purpose of progressive discipline is to correct the
unacceptable behavior of an employee. Employers impose some penalty less than
discharge to convey the seriousness of the behavior and to afford employees an
opportunity to improve. The discharge penalty is reserved for very serious
incidents of misconduct. [13]
Unless
otherwise agreed, discipline for all but the most serious offenses must be
imposed in gradually increasing levels. The primary object of discipline is to
correct rather than to punish. Thus, for most offenses, employers should use
one or more warnings before suspensions, and suspensions before discharge. [14]
In Corporal S__’s six years of employment with the
Coweta Police Department, he has received a written reprimand in August 2001,
was demoted from Sergeant to Corporal in March 2002 and received a verbal
reprimand and a written reprimand during Krumsiek's remedial training. It is
hardly just to proceed to termination under the theory of progressive
discipline given S__’s minor disciplinary record.
The August
2001 written reprimand was based upon S__’s violation of a policy that required
him to park his take-home patrol car on a hard surface rather than in his yard.
S__ challenged the intensity of City's discipline against him for the
infraction in arbitration and prevailed. There is no allegation, at this time,
that S__ violated a department policy. Therefore, this reprimand is not
relevant in this matter. There is no history of inability to follow
policy.
During
training, Krumsiek issued S__ a verbal reprimand for turning in police reports
that were missing some information. S__ has no prior record of discipline for
this type of issue. There is no evidence that S__ has a continual problem with
not filling out police reports properly. It is improper then to use this as the
basis for termination.
Krumsiek
also issued S__ a written reprimand for making a comment in the presence of
Officer Woody Bart about Krumsiek changing a decision made by S__. Bart has
been with the Department 8-10 years. Bart did not file a complaint against S__
until Krumsiek told Bart to file a complaint. Krumsiek outranks Bart. Again,
Krumsiek was engaged in soliciting complaints against S__.
S__ has no
prior suspensions on his record. S__ simply has a written reprimand on a
violation of a policy and a written reprimand on a statement he made in front
of another officer. S__ has a verbal warning about his police reports. That's
it. These, in conjunction with City's remedial training and performance
measurements of S__, do not equate to termination on the progressive discipline
scale. There is no indication that S__’s career was beyond salvage.
Performance
Appraisals
S__’s performance
appraisals show that S__ has a pattern of good performance on the job. In March
2001 the Chief rated S__ as “very good” at job knowledge. According to the
Chief, S__’s reliability is “very good.” The Chief noted that S__ is “always
dependable.” S__ was a corporal at this time. In June 2001, Chief Palmer rates
S__ “very good” on job knowledge. S__’s reliability and adherence to policy
were rated as “very good.” The Chief noted that S__ “follows rules and
directions.” Ten months prior to S__’s termination, the Chief recorded that S__
exceeds the departmental standards. Clearly, there is no pattern of misbehavior
or substandard performance by S__.
In February
2002, two months before the termination, the Chief rated S__ “good” on accurate
and thorough work. The Chief agreed that S__ “constructs well-written reports”
and “reports are accurate, thorough, and neat.” There clearly is no pattern of
inability to write accurate or thorough reports. S__’s verbal reprimand for not
filling in a couple of blanks on a police report in April does not lend
credibility to the City's decision to terminate S__.
In February
2002, two months before the City terminates S__, allegedly for substandard
performance, the Chief rated S__’s productivity as “good.” The Chief did not
tell S__ that there was any certain productivity number that he needed to meet
or strive for or that there was a problem with his productivity. Obviously,
there is no indication of any problem with S__’s performance.
In February
2002, the Chief rated S__ as “very good” on completing assignments on time and
sense of responsibility and on ability to work with little or no supervision.
The Chief rated S__ “good” on initiative and “assuming additional duties when
necessary.” The Chief rated S__ “good” on proper judgment and decision-making
skills. The Chief rated S__ “good” on communication skills both written and
verbal. There simply is no history of past substandard performance.
As of
February 2002, S__ was satisfying the Chief with his ability to complete
reports, being thorough in his job, having good productivity, having a sense of
responsibility and ability to work without supervision, and ability to assume
additional responsibilities. The Chief rated S__ as a skilled communicator, both
in writing and verbally. Clearly, S__ has a proven track record of being an
employee that works at a level satisfactory to the Chief.
In the
February 2002 evaluation, the Chief did note that S__’s verbal skills with
officers “needed polishing” and that S__ had a weakness in interpersonal
relationships. Those comments are based on S__’s statement in his
self-evaluation. In S__’s self-evaluation, he stated, “I believe I need to
improve my people skills, dealing with employees. I am quick to point out problems
and need to improve how I present these to employees and also ways to fix those
problems.” S__ simply wanted some training on how to better analyze a problem
and come up with an effective solution. That was the extent of the concern over
interpersonal relations. The Chief agreed that S__’s ability to point out areas
that he wants to improve is a good trait. Certainly S__ should not be
disciplined for making a statement that he would like to improve his ability to
address problems in the workplace.
During the
February 2002 performance appraisal, the Chief informed S__ that he needed to
improve in the area of creativity. Creativity was not listed as any reason for
S__’s termination. The Chief provided the following ideas for S__ to improve
his creativity:
We talked
back and forth and he came up with some ideas and things ... train and do
activities, first one thing and another in the public other than just driving
around issuing citations, something other than that.
This is the
Chief's idea of helping to suggest ways S__ can improve his creativity? What
sort of competent direction can this be? Further, on one hand, the City
terminates S__, allegedly for not writing enough tickets, while on the other
hand, the Chief is instructing S__ in his performance evaluation to do
something besides “just driving around issuing citations.” This hardly suffices
to place S__ on any sort of notice that his behavior is unacceptable, or is it
clear direction of the City's expectation.
The Chief
rated S__ as “needed improvement” in the area of adherence to policy. That
rating was due to S__’s August 2001 disciplinary action. There is no other
concern that S__ was not adhering to departmental policies.
S__ went
from a sergeant to termination within one year. Even the Chief admitted that
during “that period of time and overall even his evaluations will show there
were no deficiencies, he was a pretty good employee.” S__ has “the ability to
be a police officer.” The Chief had a follow-up meeting with S__ on March 8,
2002. The Chief asked S__ if he thought he had improved in the areas that they
had discussed. S__ answered yes. The Chief also asked S__ if he was happy and
satisfied with his job. S__ answered yes. So, as of the March 8th follow-up
meeting, based on S__’s responses and conduct, the Chief did not see any reason
why S__ should be terminated or disciplined. This is the follow-up meeting
arranged by the Chief, and no action was taken against S__ based on what S__
had done or had not done all the way to March 8, 2002.
During the
March 8th meeting, the Chief asked S__ to provide a narrative on what S__
thinks a shift should be like inside the department and what qualities a
supervisor should have. The Chief did this to see if “deep down inside” S__ was
knowledgeable on what a shift supervisor should be and how the shift should
operate. S__ promptly turned in his narrative to the Chief. Palmer did not
respond to S__’s views on supervision because what S__ wrote “was what a
supervisor should be.” The Chief agreed with S__’s views on supervision, S__’s
views were “adequate” and “appropriate.” City's attempt to infer that S__ does
not understand the roles of a supervisor are simply a pretext for bad faith.
Just weeks before the remedial training on supervision, the Chief had no
disagreement with S__’s understanding of supervision and leadership. The whole
of the remedial training on leadership and supervision was a ploy to terminate
S__.
Finally, at
the March 8th follow-up meeting, the Chief assured S__ that he had nothing
personally or professionally against him. Yet, less than two months later, the
Chief concludes that S__ is no longer needed and terminates S__.
The City desired to rid itself of an advocate of
the FOP. On September 18, 2001, the Chief was given direction from the City
Manager to reduce expenses by eliminating employees who cost the City more than
they should. Firing an employee was one way to reduce expenses. S__ cost the
City money because of his FOP activities. Arbitrators cost the City a lot of
money. The City was concerned about that cost. As FOP President, S__ brought
four arbitrations against the City between August 2001 and his termination
date. That cost the City money, and the City set out to eliminate S__. A few
weeks after the first arbitration in August 2001, the City Manager sent out his
directive to get rid of costly employees. The Chief followed that directive.
The City
dislikes the FOP. At a Departmental meeting with the officers, the Chief wrote the
word FOP on the chalk board in front of the room and crossed through the word
FOP. The City's dislike of the FOP and its anti-union motive to fire S__
becomes even more evident given its cross-examination of S__. The City strongly
challenged S__’s position that the City had to negotiate terms and conditions
of employment. Changes to terms and conditions of employment are to be
negotiated. The City clearly disagrees with this fact of law. The City's motivation to fire
S__ is clear. As the FOP President, S__ places a check on City's abuse of the
FOP and the Fire and Police Arbitration Act (FPAA). In the City's view that is
not acceptable, for the City does not want to bargain with its employees nor
arbitrate grievances as the FPAA requires. That is why S__ was fired.
Conclusion
For all the foregoing reasons, the City's
termination of S__ is not for just cause and must be reversed. The City failed
to recognize and afford S__ his rights to due process before it deprived him of
his employment. Such violations of due process negate just cause for
discipline.
Discussion
and Opinion
The termination of S__ was not based on just
cause. There are many problems associated with the City's handling of S__’s
situation. So many in fact, that this case is a classic example of what not to
do when administering discipline.
It is
difficult to understand why S__’s situation was handled so poorly. The FOP's theory is that the
City's firing of S__ was a structured discharge to intimidate the FOP in
general and to retaliate specifically against S__ for his leadership role in
the FOP. That's a plausible explanation. Equally plausible is that the City
does not know how to effectively administer disciplinary action.
I will not
revisit every detail of this case. The post-hearing briefs adequately cover the
significant elements. The City's attorney should be commended on doing a very
good job with a very weak case. Although quite capable, he was hamstrung by
having to sculpt something from almost nothing. The FOP's attorney should be
commended as well. In reaching a decision favorable to S__, I was influenced
primarily by the FOP's presentation of evidence at the hearing and its summary
of the evidence and conclusions in the post-hearing brief. Although I did not buy
the FOP's argument lock, stock, and barrel, it did convince me that the City's
handling of S__ had serious due process and just cause deficiencies.
Based on the
arguments and the evidence, I reached the following conclusions.
Generally speaking, S__ had an acceptable work
record during his tenure with the City. His performance appraisals tended to be
average or better. As was his performance in specific areas, for example, the
number of citations and arrests.
There were some concerns expressed in S__’s
performance appraisal in February 2002. More specifically, there was an indication
of lack of motivation, failure to adhere to department policies, and
interpersonal relationship problems. No disciplinary action was taken for these
issues. And, S__ was not warned that continued problems with the three issues
could result in disciplinary action.
S__’s recent
disciplinary record was relatively benign. He received a written reprimand in
August 2001, was demoted from Sergeant to Corporal in March 2002, and received
both a verbal and a written reprimand during his remedial training with
Krumsiek. He behaved badly in an incident where his son was issued a citation,
but he was not disciplined. Normally, in a case like S__’s where there is no
serious offense (e.g., theft, violence, drug use), an arbitrator would expect
to see progressive discipline over an extended period of time—verbal
reprimands, written reprimands, suspensions, then termination. That did not
happen in S__’s case. The City fired S__ within a relatively short period of
time and based on minor offenses.
Allegations
made by Skeen and McDonald against S__ during the April 2002 three-car accident
on Hwy 51 were questionable. Although implying that S__ was goofing off and
neglecting his duties, these allegations were contradicted by S__ and others at
the accident scene. What's more, there was some indication that Skeen and
McDonald were cozy with Krumsiek. And, to the extent that one likes to dwell on
conspiracy theories, Skeen and McDonald may have been in league with the City
to undermine the FOP and S__.
Of even more
interest in this case was the City's so-called remedial training of S__. As a
life-long educator who has been involved in the training and developing of a
wide range of students—from semi-skilled workers to graduate students—I took
particular notice of S__’s training. It was the antithesis of good instruction,
so much so, that it appears the City either used the remedial training to
sandbag S__ or that they do not know the first thing about training.
I will not
belabor points on the principles of teaching. So, here's the short of it. The
person charged with training should be a skilled teacher dedicated to the
success of the student. Training objectives should be specific to a particular
skill gap determined through an analysis of the student's training needs.
That's not what happened with S__.
First of
all, with respect to skilled teachers, Krumsiek is a good police officer. One example
is sufficient. You should do more than read to a student.
Additionally,
with respect to an analysis of S__’s skill gaps, it is not altogether clear
what they were. If an officer has been in law enforcement for three or more
years, one has to conclude that he understands the techniques of police work
and the related legal environment and is capable of getting things done. If he
is not capable with respect to techniques and the legal environment, and he is
still on the streets, the police department has failed. If an officer is
technically competent, the only thing left in terms of a skill gap is
interpersonal relationship skills—people skills. For a police officer, that
means the ability to get along with co-workers, the public, and people in management,
the political realm, and the judicial realm.
I think it
is safe to say that having employed S__ as a police officer for 6 years, the
City was generally satisfied with his expertise as an officer. However, it is
arguable that S__ is no Dale Carnegie with respect to winning friends and
influencing people. In fact, S__ was aware of his interpersonal relationship
shortcomings. In a self-evaluation, S__ stated that he needed to improve his
people skills with respect to dealing with employees. He noted that he was
quick to point out other people's faults and needed to improve the way he
addressed these issues with others. [15]
Therefore, to the extent that S__ had a skill gap, it was probably related to
people skills. The way he handled the situation involving his son is an example
of poor people skills. That he has acquired so many antagonists in management
and City government could be another indicator.
However, the
remedial training did not focus exclusively on people skills. One example
stands out as indication that the content of the training was not specific to a
particular skill gap determined through an analysis of S__’s training needs.
That is the use of Fiedler's LPC theory of situational leadership in the
remedial training. Remedial training is intended to correct or improve
deficient skills in a specific subject, for example, the practical aspects of
arresting a drunken driver. LPC theory has very little to do with practical
skills. Some believe it is not practical at all. To date, no organization has
successfully applied LPC theory in the workplace. The theory is an esoteric,
highly theoretical leadership construct that in many academic environments has
lost favor in explaining leadership. I can think of no job-related reason to
teaching LPC theory to police officers. Unless, the intent is to baffle and
overwhelm the officer with a complicated model of leadership in hopes he
fails.
I am not blind to the fact that S__ has issues
that need to be addressed. As President of the Local, he should be a benchmark
police officer. I suspect he is not a team player and is careless in his duties
from time to time. And, he probably needs to improve his relations with the
people he serves—the public, his co-workers, management, and the City's political
leaders. All of these issues should be addressed and can be corrected
personally by S__ or through counseling, training, and progressive discipline
by the City.
In
conclusion, I am not sure why the City fired S__. For whatever reason, it was
without just cause.
AWARD
S__ shall be reinstated to his former position at
the present pay rate for that position within 10 days of the date of this
award. His back pay will be computed for the time he would have been scheduled
for work after his date of termination inclusive of any eligible holiday pay
and vacation pay but exclusive of any overtime that may have been scheduled
during his absence. S__’s back pay shall be reduced by unemployment
compensation and/or compensation from other employment received by him between
his date of termination and the date of his reinstatement with the City.
Due to the
possible need for clarification, I will maintain jurisdiction for 30 days from
the date of this award in the event that questions or issues associated with
the reinstatement should arise.
Footnotes
1 The state
of Oklahoma's Council on Law Enforcement Education and Training.
2 Condensed
from the City's post-hearing brief.
3 Champion
International Corporation, 108 LA (BNA) 218.
4 How Arbitration
Works, Fifth Edition.
5 City of
Cleveland and Ohio Patrolmen's Association, 106 LA (BNA) 264.
6 Stockholm
Pipe Fittings, 1 LA (BNA) 160.
7 Condensed
from the FOP's post-hearing brief.
8 How
Arbitration Works, Fifth Edition.
9 August 2,
2002 letter from Byron L. Boshell evaluating the testing process.
10 Norman
Brand, Discipline and Discharge in Arbitration, 2nd Ed.
11 How
Arbitration Works, Fifth Edition.
12 How
Arbitration Works, Fifth Edition.
13 Norman
Brand, Discipline and Discharge in Arbitration, 2nd Ed.
14 Theodore
J. St. Antoine, Common Law of the Workplace.
15 From the
FOP's post-hearing brief.