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San Bernadino County Sheriff’s Dept.
Scientific Investigations Division
San Bernadino Public Employees Association
117 LA (BNA) 1588
October 31, 2002
B__ is a 25 year employee of San Bernadino County. At the time of this dispute he had been classified as Forensic Specialist 11, since 1988, in the Scientific Investigations Division of the County Sheriff’s Department. As such, when called to a crime scene, he assists in the investigation and collection of evidence, prepares reports, and processes evidence. On May 8, 2002, he received his annual Work Performance Evaluation (WPE). The categories of performance are rated as E—Exceeds Job Standards, M—Meets Job Standards, B—Below Job Standards or U—Unsatisfactory.
B__’s ratings for Service, Reports and Written Work, Interpersonal Skills, Safety, Appearance and Grooming, and Equipment Use and Maintenance were, M—Meets Job Standards. He received an E—Exceeds Job Standards for court appearances, and B—Below Job Standards for Work Habits—rating period April 1, 2001 to April 3, 2002. It stated, ‘B__’s reports are consistently late”. Such a rating in any category results in the Overall Evaluation of, B—Below Job Standards, and is not in dispute. In that section of the WPE, it is noted, “This is directly related to his failure to submit his reports in accordance with the established deadlines”.
An addendum to the WPE contained additional information, i.e., Standard—all reports have a due date of thirty (30) days from date of assignment, except BSP (Blood Stain Pattern) reports have a due date of sixty days from assignment. There was also a breakdown of 281 reports by B__ of which 157, containing assignment and/or due dates, were “tracked” through the computer which indicated 65% were late.
At times, after B__ completes his regular work shift, he and/or other department specialists may be called to a homicide scene. This is known as being “on call”. On September 18, 2001, B__, “was removed from on—call status for nine days until his reports were completed”.
B__ felt his Below Standard rating was not justified, and utilized the Appeals Process outlined in the County Personnel Rules, where the matter went unresolved up to arbitration.
Was the overall Below Standard of B__ appropriate? If not, in accordance with Personnel Rules, Rule VIII, Section 7, “A new Work Performance Evaluation will be completed within five (5) working days”.
County employment requires establishment of standards for both conduct and production. Production standards refer to work achievement required from an individual job and are the responsibility of the employing department.... Employees will be informed of all conduct and production standards related to their employment.
County Personnel Rules, Rule VIII, Section 2 Standards provides that the County will establish standards for both conduct and production. At no time during this evaluation period, or any other period prior to this, has the department issued, shared, or distributed the acceptable report writing standards to or with Mr. B__ regarding report timeliness.
We understand that through arbitrary use of “management discretion” some artificial time lines have been issued to Mr. B__ regarding reports in a previous WPE. However, those time lines were no clearer with respect to what is acceptable and what is not acceptable than the last evaluation.
The Association asks the Arbitrator to rule that the County change Mr. B__’s Below Standard evaluation to a Meets Standard rating and provide acceptable as well as unacceptable performance standards.
Mr. B__ has a continuing problem with time management and specifically with report timeliness. This has been documented in eight evaluations over nine years by three separate supervisors. In both 1998 and 2001 evaluations, he was specifically told he had a thirty day time frame to get his reports turned in.
While there is no actual written policy stating that reports must be submitted within 30 days, a survey of department co-workers, past and present, conducted by Captain Baker, all stated they were aware of such policy. Further, it was estimated the policy has been in effect since the mid 90’s. This time frame has become an obvious “past practice”.
Based on the aforementioned information, it seems that Mr. B__ clearly knew what the requirements were to obtain a Meets Standard rating and he did not attain them. The evaluation of Mr. B__’s performance is fair and impartial, and the Arbitrator should not change his performance rating to a Meets Standards.
The Arbitrator has reviewed the entire record. It indicates B__, with the exception of Time Management problems, specifically late reports, and Care for County Equipment, is a competent and respected Forensic Specialist. He acknowledges he has been tardy in completing reports and has been counseled both in writing and orally.
His defense is that he was never informed of the Performance Standards required for completing reports. In Joint Exhibit 3, Baker’s response and denial of B__’s appeal, he concludes, based upon his investigation, every one in the Department knew of the Standards since the mid 90’s.
For an employee to be held to Performance Standards, that employee must know what the Standards are. Baker concedes he could find no written Performance Policy, but contends the 30-60 day time frame was common knowledge, and a Past Practice for many years. Therefore, B__ knew or should have known the Standards, i.e., unless an extension is granted, all reports must be completed in 30, or 60 days for BSP.
B__ testified, he was aware of the 30 and 60 day time frame, but interpreted such as mere “due dates”, as opposed to what might be characterized as hard and fast deadlines. He believed there was an acceptable percentage of reports that could be late, but didn’t know what that rate was. The County contends it is clear that rate was zero. All reports are due within 30 days, and 60 for BSPI. One could apply for an extension of time and, if granted, such a report would not be deemed late. To resolve this matter, the Arbitrator turns to the record of evidence.
In Joint Exhibit 4, B__’s WPE dated March 31, 2001, under Action Plan for Development it states, “Spend more time focused on getting your evidence stored within the allotted time frame and getting your reports in on time, every time”. (emphasis added) On-Target Conference Reports are issued between annual WPE’s. Joint Exhibit 5 is such a report dated April 9, 2001, and reads under Additional Direction, If Any “Get all your reports turned in within the thirty and sixty day time frame. (Verbal plan as discussed: Turn in completed reports, do not wait until you have finished the entire case). (emphasis added)
Baker also wrote in Joint Exhibit 3 that in 1998 B__’s WPE, completed by Supervisor Norm Wallis, contained the line, “No cases over 30 days old shall be on your desk”. However, this document was not put into evidence. County Exhibit 1 documents Yankovich’s verbal counseling of B__ on August 17, 2001, which notes under B), B__’s reports are consistently late: past the thirty (30) and sixty (60) day policy limit. (emphasis added). On March 28, 2002, B__ was issued a memo of counseling about a late BSPI which indicates at the top of the page, “BSPI reports have a due date of sixty (60) days from date assignment”. Yankovich testified he orally conveyed to B__ in counseling sessions, all reports are due in 30-60 days. Finally, on September 18, 2001 B__ was removed from On Call status for nine days until his reports were completed. Since this lead to a reduction in income, and if he was uncertain as to the distinction between due dates and deadlines, i.e., the standard, this would have been a logical time to clarify the issue, but he didn’t.
Based upon all of the above, and applying the “Reasonable Person Standard”, the Association claim that the Department did not, issue, share or distribute written Standards to B__, is not valid. Rule VIII Standards concludes, “employees will be informed of all conduct and production standards related to their employment”. The record of evidence is convincing that B__ was so “informed”. Therefore, he was properly evaluated for continually submitting late reports and that Evaluation must stand.
Having made such determination, it should be noted that it is understandable why B__ and the Association raised the issue of the Standard not being officially published. This certainly is the more common and acceptable method. Baker proposed such lack of publication was due to there never having been a problem, but because of this incident, the Department, “will fix it”. In conclusion, B__’s WPE will remain as written.
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