City of Cooper City, Florida
Broward County Police Benevolent Association
118 LA (BNA) 842
FMCS Case No. 020814/04630-3
May 3, 2003
Robert B. Hoffman, Arbitrator*
The City of Cooper City Florida (“the City”) terminated B__ (“the grievant”), a police officer, for engaging in misconduct during the midnight shift on February 10, 2002 in violation of City Police Department Rules. The City contends that the grievant’s departure from his regular assignment to meet two other officers outside his regularly assigned zone for over one hour constituted malingering, and his Daily Action Report (“DAR”) was written in a fictitious manner to cover his tracks. In light of a previous warning concerning malingering and falsification of reports the City maintains that it made a reasonable decision to terminate the grievant.
Broward County Police Benevolent Association, (“the Union”) contends that the grievant did not violate any rules. The grievant had a right to be at this location for a meal break and to assist other officers in patrolling this area. The grievant was advised that the previous discipline would be treated as if the grievant was starting with a clean slate. To use it as progressive discipline is misplaced. Moreover, the grievant was treated disparately when compared to other officers who engaged in similar conduct. At issue is whether there is just cause under the parties’ collective bargaining agreement for this termination, and if not, what shall be the remedy.
The City, with a population of 29,000, covers eight square miles in Broward County, Florida. For purposes of police patrolling, the City is divided into four zones. During the midnight shift, one officer is assigned to each zone to patrol by car. Officers are expected to remain primarily in their assigned zones, but may go to other zones to patrol businesses that can overlap zones, such as shopping plazas, or when needed to back-up other officers in need.
1. February 10, 2002
The grievant, a police officer with the City since December 1996, was assigned on this date to the midnight shift and to patrol in zone 3. He recalls that at the 10:45 p.m. roll call Sergeant Brown mentioned some ongoing criminal mischief and burglary concerns at Country Glen, a gated residential community at the far west end of the City in zone 4. Officer C__ was assigned to this zone. According to the grievant, Brown asked all officers “at some point through the night, to make sure you drive through there and document it on your sheet.” The two other zones were assigned to officer B. Brown to zone 1 and officer L__ to zone 2.
Sergeant Brown did not recall making any assignment to patrol Country Glen, other than to the assigned officer on February 10. Although there had been a rash of thefts in this area, if he assigned other officers to patrol he would specifically set forth these assignments in the Supervisor’s Daily Shift Report. This report gives specifics of what was assigned and the topics discussed in the roll call prior to the start of the shift. Under “special shift duties” in his report for February 10 there are references to officers making “interior zone patrol[s], plaza checks, [and checking the] Griffin Road construction site.” There is no reference to patrolling at Country Glen. “Interior” patrols occur inside a residential gated community as part of regular zone assignments. Brown discussed a number of other items before the shift started, including “vehicles, detention, sally port and zone books.”
A Complaint Log Shift Report shows dispatch times officers received complaints and gave radio dispatch for their movements to the department’s dispatch service at Broward Sheriff’s Office (“BSO”). The February 10 report shows that Officers C__ , L__ and the grievant went to a stakeout in zone 2. BSO received a dispatch call at BSO at 12:21 a.m. When Sergeant Brown learned that three of his officers were at this one stakeout at the same time, and without his permission, he ordered them to discontinue it and return to their assigned zones. The dispatch record shows that the stakeout was discontinued at 12:24.1
The grievant testified that sometime after this stakeout ended he called phone with L__ and C__ on his cell. He proposed that the three of them meet in one place and suggested Country Glen in zone 4. He believed that during the roll call Sergeant Brown had referred to all officers checking out Country Glen. They agreed to meet there at a certain time and “walk around.” In the meantime the grievant went to his zone and patrolled the Embassy Lakes development. About 2:00 a.m. he called ahead to Miami Subs and placed a food order for himself. He left zone 3 at 2:25 a.m. picked up the food and arrived at Country Glen, about seven miles, five to seven minutes later.
According to the grievant when he arrived at Country Glen L__ and C__ were already parked side by side in an empty lot next to a house under construction at the far end of the development.2 The grievant stated that he patrolled in his vehicle for “a few minutes” before finding L__ and C__ . He pulled up next to their two cars and offered C__ some of his food. It was about 32 degrees outside. Each officer sat in his car. The grievant maintains he was on his 30 minute meal break when, about 15 minutes later, he noticed Sergeant Brown arrive in his vehicle. He knew it was Brown because the vehicle had two blue lights indicating a supervisor’s car. Sometime later, L__ called the grievant on his cell and asked what Brown was doing there. In cross-examination the grievant stated that he called L__ . Cell phone records show that the grievant made an outgoing call at 3:14 a.m. and another call is shown at 3:19.3 The grievant then saw C__ leave his car and walk over to Brown. C__ left the area moments later, as did L__ .
C__ testified that he estimated they had been in the area for about an hour before Brown pulled up. At first he was uncertain whether it was a car leaving or coming into the area. He had his glasses off and could not see clearly, so he asked L__ if it was the grievant leaving in his car. He learned that it was his Sergeant’s car.
The guard at the gated entrance testified that about 3:00 a.m. Sergeant Brown came to the Country Glen gate. Brown asked what was happening there. The guard related that everything was normal but three police officers had entered a while ago. Brown asked when this occurred. The guard stated that two of them came in at the same time and the third one arrived about two minutes later. They had been there “about 45 minutes.” In a statement given after the termination he related that they had been there between 45 minutes and one hour.
Sergeant Brown testified that he pulled up to the gate about 2:50 a.m. The guard told him that three of his officers had arrived about one hour earlier. Brown became concerned; he had not received calls from them, he had not been told by dispatch of this joint patrol nor had he given instructions to patrol this area, except for C__ who was assigned to zone 4. He drove into the development in search of his three officers. Finally he located them in the farthest reaches of this community in an empty lot next to a construction site.
Brown discovered that these officers were parked in their vehicles side by side with their lights off. He pulled within 20 to 25 feet of them, parked and shut off his motor. He noted his arrival at 3:02 a.m. He sat there initially expecting them to make some sort of contact with him. In this darkened area he could make out silhouettes in the cars. C__ had his head reclined against the vehicle’s headrest. The grievant was not moving at all in his vehicle. L__ was motionless and also reclined against his headrest. He believed they were sleeping. To be certain he decided to wait for a period to see if he could detect some movement. They remained still for almost 20 minutes.
Finally, according to Brown, he observed C__ move his head and adjust his body. C__ reached out of his vehicle and made a gesture to L__ . Brown could hear some voices. Immediately thereafter he heard a cell phone ring and saw movement in the grievant’s car. At 3:25 a.m. C__ left his vehicle and approached Brown. He asked him what was up. Brown replied that it looked like a convention here. C__ said that they were just “taking a little break.” C__ then returned to his vehicle. A few minutes later he drove toward the Sergeant and told him that he would see him later. L__ then followed him in his car.
The grievant testified that after L__ and C__ left he called Brown. The Sergeant related that the grievant waited ten minutes after they departed and then called him at 3:34 a.m. The grievant first asked Brown whether he was “surveilling” him? Brown replied that there were only two of them there, “so the question is are you surveilling me?” Brown added that he had a job to do and the grievant responded, “whatever Jerry.” 4 The grievant then drove away and as he passed Brown, with his tires were spinning hard in the dirt, he shouted something to Brown that could not be deciphered.
At the start of the next shift Sergeant Brown told the three officers he intended to document the incident at Country Glen. The grievant told him he was entitled to a break and he had done nothing wrong. He was upset because Brown had chose to “surveil” him, he was being “targeted” and his attorney would hear about this situation. He would have had more respect for the Sergeant if he had “handled things differently.” He suggested that Brown should have tapped on his window and given a verbal reprimand.
The grievant completed his Daily Activity Report (“DAR”) and wrote that he was “patrol/40” from 0230 to 0330 at Country Glen. A “40”is code for a dinner break.5 After reviewing this DAR Sergeant Brown reported to the Chief that the officers violated department rules. They were negligent and inattentive to their duties and responsibilities. They failed to recognize his presence and placed themselves and other members of the shift in jeopardy by being in this area together. They were unresponsive and showed a lack of proper discretion for their safety, the citizens of the City and their shift members.
Sergeant Brown added that the grievant’s DAR was inaccurate, false or had improper information. Despite designating a meal break and patrol at Country Glen between 0230 and 0330, Brown observed the grievant from 0302 hours until 0335 hours. He did not see him patrolling or having his lunch. There was no radio dispatch that he or the others were on a meal break. On February 27, 2002 the grievant was notified of a pre-determination hearing. The department was considering that his actions violated some five rules and one General Order relating to sleeping on duty.
The pre-determination hearings before Chief Werder were held on March 13, 2002. He reported that C__ acknowledged, “we were hanging out . . . it was too long in one area.” C__ had no previous misconduct discipline. His record showed a written reprimand for an accident in January 2002. He had letters of commendation. For the February 10 incident he received a three-day suspension for neglecting duty and a written reprimand for an inaccurate and untruthful report. The Chief found that “residential patrol” from 2:29 to 3:31 conflicted with the observation of the security officer at the gate who placed their entry at 2:00 a.m. They could not have been on patrol when they were observed stationed side-by-side.
Chief Werder found that L__ was not asleep; the phone log showed that the grievant initiated a call at 3:14 and L__ had a return call at 3:19. L__ borrowed C__ ‘s laptop so he could play pinball, which he did for most of the time he was there. He did not hear Brown pull up because he was concentrating on the pinball game. L__ disclosed at his hearing that he did not know how long Sergeant Brown had been there; he told C__ that Brown should talk to them first. L__ believed Brown was following him. L__ ‘s DAR showed that he, too was on patrol from 2:28 to 3:25 and he was eating a meal. L__ stated at this hearing, according to the Chief’s report, that “they could have been raping and pillaging in my zone and I wouldn’t have known.” Although L__ had six commendation letters, he also had three oral reprimands and a one-day suspension, including recent incidents where he did not answer his radio. The Chief cited neglect of duty and conduct unbecoming rules for L__ ‘s termination recommendation. This officer was also under investigation in another matter for which the Chief also recommended termination. L__ did not testify at this arbitration.
The grievant contended at his pre-determination hearing that he did nothing wrong.6 The Chief agreed with him regarding the General Order relating to sleeping and being alert. But found that he violated rules relating to meal or rest breaks, department reports, unbecoming conduct and neglect of duty. The Chief considered a number of commendations from the public but still recommended termination, which was ultimately accepted. He concluded in his report:
The recommendation of termination is based upon the facts of this case, viewed in the light of the last sentence of your previous suspension, which stated: “An additional event or episode of malingering or misrepresentation in the future shall result in a recommendation of termination.” What transpired on the night of February 10, 2002 is clearly another case of malingering. The intentional inaccuracies contained in two entries on your departmental activity sheet also confirms your misrepresentation of the truth, as you knew it . . . .
2. Grievant’s February 2001 Discipline
An Internal Affairs investigation concluded in February 2001. The grievant received a five-day suspension. It was thereafter reduced in an addendum to three days. As seen, the grievant was warned that termination shall result if another incident of malingering or misrepresentation occurs. The grievant had misrepresented his physical condition regarding a knee injury to a doctor and to workers’ compensation. He claimed that he could not work at all, even light duty. He stated that medication prevented him from driving. As a result, he was able to stay off work and remain in full pay. During this period he was observed by a Captain outside the City driving a vehicle to a bar, a restaurant and to shops. He walked over curbs, climbed in and out of his vehicle without a limp. He did not need the use of any cane or device for assistance. Later on when the grievant later saw investigating officers he retrieved a crutch from his car trunk and walked with an exaggerated limp.
The addendum to the five-day suspension resulted from mitigating evidence presented by the Union to the Chief. The Chief stated that these factors “. . . did not mitigate the serious nature of your actions nor diminish the resulting effect on this organization.” He found that these factors affected only “the amount of the disciplinary action.”
At this arbitration hearing the grievant related he accepted the reduction to three days “to be done with it.” The Chief told him they were going to “put this behind us” and he could move ahead in his career. This would be a “new beginning” or a “clean slate,” the Chief told the grievant. The grievant disclosed that he could not recall whether Chief Werder specifically told him that this discipline would not count against him in future misconduct. The Chief denied telling the grievant there would be a “clean slate.” If, as the grievant contends, he did not intend to use the discipline against the grievant, it would have been a complete forgiveness, the Chief testified, rather than a modification of the suspension. None of the records make this statement.
C. Positions of the Parties
1. The City
This case involves the most basic principles of law enforcement, honesty and integrity. The grievant failed to maintain and honor the City’s reasonable expectations of a police officer. Instead of patrolling the City or performing other police duties he simply sat malingering in his police vehicle for well over one hour in the most remote/secluded corner of the City. Even after he became aware that his supervisor had discovered him and two other officers with him, he chose to engage in an arrogant standoff with his supervisor. The grievant then wrote his DAR in a way that would cover up his tracks. The grievant says that he did nothing wrong. But it is wrong to hide out with two other officers while on duty; it is wrong to falsify a report; it is wrong to treat a superior officer with complete disrespect.
One year before this incident the grievant was issued a disciplinary suspension for malingering and providing false reports related to his injuries so he could avoid working while still being paid. As part of this discipline the Chief expressly warned him in writing that another event of malingering or misrepresentation “shall result in a recommendation of termination.” Thus, the decision to terminate based on his conduct in 2002 was viewed in the light of his recent similar misconduct involving malingering and falsification of reports.
2. The Union
Although the City raised a few minor issues concerning the way the grievant took his meal break or submitted activity reports, the City failed to carry its burden that the grievant was neglectful, untruthful, failed to remain alert, violated the meal or rest break rule or behaved in a manner unbecoming to the City. Also, the grievant was treated in a disparate manner than that of officers H__ , K__ , E__ , L__ and C__ . The City did not complete a fair, complete and thorough investigation, even though it has consistently afforded such to others, as when officer Grimes alleged that Sergeant Brown was observed sleeping on duty. Numerous witnesses were interviewed unlike here. But because only one person observed Brown sleeping the charge was not sustained. Here no statements were taken, even from the grievant, before sustaining the charges and recommending termination. It is clear that the City merely assumed wrongdoing and, in its zeal to get the grievant, it failed to conduct even a minimum investigation.
The City chose also to stack the charges against the grievant and then raised issues that had nothing to do with the alleged charges. There was no evidence to show that the grievant brought discredit to the City, his colleagues, or that the residents of the City harbored diminished respect for the grievant, the Department or the City. Instead all of the evidence established that the grievant’s superior’s considered the grievant to be a good employee.
The Union raises a number of issues in an effort to show that the City failed to prove just cause for this termination.
1. Disparate Treatment; Fair Investigation Claims
Just cause requires an employer to apply its rules and penalties evenhandedly and without discrimination. The prohibition against discrimination requires like treatment under like circumstances. When penalties are considered it is generally accepted that all employees who engage in the same type of misconduct must be treated essentially the same, unless a reasonable basis exists for upholding the variation. It has long been an arbitral principle that the circumstances of each case must be considered to determine if the different treatment is sufficient to prove disparate treatment. The burden rests with the Union to show that the treatment is different. If no reasonable basis exists for differing penalties for the same offenses, then disparate treatment is shown. However, if for example, the circumstances show different degrees of fault, or prior warnings for similar conduct or mitigating circumstances affecting some but not all employees, a reasonable basis may exist for varying the penalties. A case decided almost 50 years ago, which has been cited consistently by arbitrators, very simply describes the rationale:
Two employees may refuse a work assignment. For one it’s his first offense, there being no prior warning or misconduct standing against his record. The other has been warned and disciplined for the very same offense on numerous occasions. It cannot be seriously contended that discrimination results if identical penalties are not meted out.7
The Union maintains that there are many differences in the way this grievant was treated when compared to others. There are officers with similar violations who received less discipline. Even during the investigation the grievant was treated differently. When Sergeant Brown was accused of sleeping on the job, the City questioned a large number of witnesses, whereas in the grievant’s situation no witnesses were questioned and no statements taken before the decision to terminate. Brown’s allegation was not sustained because no one except the officer making the accusation observed the Sergeant sleeping.
It is this City’s practice to not conduct an internal investigation where a supervisor witnesses the misconduct. As will be seen in the K__ and S__ cases, supervisors were the only witnesses and they were treated as personnel complaints. This means that the witness statements normally taken in an internal investigation are generally not done in this procedure inasmuch as management directly witnessed the conduct. The City was consentient in handling this investigation in the same manner. Still, does this consistency make it right? Due process as part of just cause requires that an employer conduct a fair investigation, so that when a decision is made involving discipline, the employee can be assured that the facts were fairly and properly gathered and considered.
Information obtained before the Chief’s findings and recommendation on April 15, 2002 constituted this investigation. Witnesses to this incident were Brown, L__ , C__ and the security guard. Brown interviewed the guard twice on February 10.8 Brown then provided a written statement of his observations to the Chief on February 12, along with the grievant’s activity report, Brown’s Daily Shift Report and a diagram of the scene where he discovered the three officers and their vehicles. On March 6 the three officers and their representatives appeared at a pre-determination hearing and provided extensive information about the incident. Also, the Chief had gathered numerous commendation letters and notes from superiors and the public for purposes of considering mitigation. His recommendation does not appear to have been made hastily. The Chief took over one month and ultimately issued detailed findings of fact and a reasoned recommendation for the termination.
The Union has not pointed out who else should have been interviewed. At his point all of the witnesses had been questioned about what happened. There simply were no more witnesses. The Chief had all the information that could be obtained from people who witnessed what occurred. Only after considering all of this evidence was a recommended decision made to terminate. There is no due process violation.9
The Union contends that as a result of the Chief’s failure to consider records of other employees who were similarly situated, the City did not establish just cause for the termination. The Chief had an obligation to determine if the penalty to be imposed was consistent with other employees who had similar offenses. Simply not doing so by itself is not enough to warrant sustaining the grievance, but it is evidence that raises concerns about how the grievant was treated and the reasonableness of the penalty. The concern becomes serious if in fact there are others who were treated differently, especially where the circumstances are similar and there is no reasonable basis for the distinction to be made.
The Union believes that if the Chief had looked at the personnel records he would have found records of three other officers in similar situations who had penalties less than discharge. The Union asserts that these cases are sufficient to establish that the grievant received disparate treatment. First, it points to Sergeant H__ who was charged with leaving his post, conduct unbecoming, neglect of duty and falsifying records. He was demoted to officer, suspended and subject to a last chance agreement. He then violated the agreement by engaging in similar misconduct. The Chief considered terminating H__ , but an agreement was reached with the Union to extend the last chance agreement and issue a three-day suspension.
Unlike the grievant’s situation, H__ had some 19 years of seniority compared to six for the grievant. Seniority of this magnitude counts heavily when weighing mitigating circumstances. Moreover, the reason for the last chance agreement is clouded in language suggesting that there were “particular circumstances” that prompted its adoption. This language suggests that absent such circumstances the discipline would have been greater. There is no evidence as to what these circumstances may be that afforded H__ this last chance. But it matters little inasmuch as the parties also agreed that they did not want to be bound in the future by whatever they did in this case. They inserted language stating that this case “does not establish a precedent for the resolution of other cases.” Thus, using this case as evidence for disparate treatment, even when extended to cover additional conduct, violates the parties’ agreement not to use it in the future. But even if used, there appears to be a sufficient and reasonable basis for the different penalties.
Officer K__ was caught by Sergeant Seretti drinking in a nightclub during working hours after K__ called in sick. He was charged with fraudulent use of sick leave and suspended for two days. K__ ‘s attempt to use paid sick leave during a time when he was not sick is somewhat similar to being charged with falsification. But there are reasonable differences. K__ had no prior discipline and no warning that he would be terminated for this conduct. Moreover, K__ may have been sick when he first called. He claimed he hurt his neck but when it improved later on he decided to go out. Thus, the issue of intent to defraud seems at best uncertain. There is no evidence that K__ attempted to actually conceal his actions from anyone. He went to a public place where he knew he could be seen. The grievant was in a secluded and far-removed corner of the City in a vacant lot in the middle of the night.
A Sergeant Lopez observed officer S__ at the station when her DAR reflected she was at Country Glen. S__ then resigned from the Department before the investigation was completed. Thus, there is no discipline to compare. E__ was charged with untruthfulness for giving a false statement during an internal investigation while a probationary officer. Termination was recommended but then her probation was extended. Chief Werder remembered very little and no documentation was produced. This instance is too sketchy to provide a sufficient basis for disparate treatment. The Union’s burden is to have the facts and documents for those employees it claims are comparators.
All in all the evidence fails to establish that the grievant was not treated evenhandedly when compared to other employees with similar violations, or that he was treated disparately when considering the penalty. Noteworthy is that the grievant received a three day suspension one year earlier for similar violations; this is the same penalty given to C__ for his first violation of similar offenses. Significantly, except for H__ , none of the employees who were disciplined were under a final warning. The H__ situation is the exception because the parties agreed to make it one. They specifically decided that whatever was involved in that matter they did not want to cite it as a precedent to be used in the future. As such, there is insufficient evidence to show that even if the grievant is found to have violated department rules that his penalty should be reduced to a suspension.
2. Did the City Have Just Cause to terminate the Grievant?
The crux of this grievant’s termination relates to leaving his assigned zone and joining two other officers for an extended period of time in another zone and whether he was there for a legitimate work purpose. This conduct resulted in the grievant completing a record of his time that included what he contended was time spent there and a description of what he claimed he was doing. It is this conduct that must be closely scrutinized to determine if the City had just cause for this discharge.
The grievant is charged with violating rules relating to neglect of duty, unbecoming conduct, falsification of departmental reports, and meal and rest breaks.10
a. Neglect of duty
The essence of this termination decision is the charge that the grievant neglected his duty by in effect hiding out with two other officers in this remote area of the City. The Union maintains that it is wrong to rely solely on the observation of Sergeant Brown. But there is little in dispute about what Brown observed and, as seen, there is evidence from the other two officers that they were not there to patrol or even to have a meal break. C__ in no uncertain terms stated at the pre-determination hearing that “we were hanging out . . . it was too long in one area.” He confirmed this statement at the arbitration when he testified that it was simply wrong for the three officers to have been there for that period of time. L__ did not testify, but his statements from the pre-determination hearing are in evidence. He also knew it was wrong, as seen by his statement that “they could have been raping and pillaging in my zone and I wouldn’t have known.”
It is undenied that the grievant’s primary assigned duties where elsewhere than Country Glen. His assigned duty was in zone 3. This did not mean that if his duties required him to move to another zone he could not do so. But there is little if any evidence suggesting that he should have abandoned his assigned duty and congregated with other officers in this remote area. His attempt to make this period of time into a patrol simply does not wash. C__ best described their meeting as “hanging out,” which is hardly a patrol and certainly not a recognized police function. “Hanging out” is plainly not law enforcement by any stretch of the imagination. C__ ‘s characterization of what they were doing, or not doing, is exactly what Sergeant Brown observed for some 20 to 30 minutes—three officers resting in their vehicles parked side by side. L__ admitted he was playing a computer pinball game and was completely unaware of what was happening around him. C__ had his glasses off and could barely make out whether the appearance of a car 20 feet away was the Sergeant’s car. Then he could not tell if it was Brown coming or the grievant going. He was completely confused. But the grievant was not occupied with games or immersed by confusion. He knew his Sergeant was there. Yet he chose to simply sit in his vehicle for some 30 minutes and do nothing, even after L__ and C__ left the scene to return to their patrols. To suggest that this conduct is not neglect is simply misplaced.
There is more that establishes the grievant’s neglect. It is the grievant who instigated the congregation at Country Glen. He placed the calls to C__ and L__ right after the three of them were ordered to immediately breakup their joint stakeout and return to their individual zones. C__ and L__ were extremely upset and the grievant appeared just as angry with Brown by suggesting this getaway in Country Glen. L__ was prepared to “do nothing” after this rebuff from the Sergeant. C__ and the grievant obviously felt the same as seen by their retreating to this remote area and remaining there well beyond any meal break and without any credible evidence that they ever patrolled the area.
Still, the grievant attempts to justify being in Country Glen. He states that during the roll call Brown told officers to patrol this area. It is evident from the detailed supervisory logs, especially the one for February 10, that had this assignment been mentioned by the Sergeant at the roll call, it would have been written on the log. It was not there. Yet there are specific references to other assignments, such as checking the Griffin Road construction site. Brown’s denial that he added Country Glen is thus more credible than the grievant’s version.11
The notion that they were there to patrol is also weakened by the grievant’s statement when he planned this event. They would go there and “walk around” he told the others. However, none of the officers walked anywhere once they arrived. It is true that it was cold that night. But the grievant knew this when he instigated this gathering only two hours earlier.
Moreover, even assuming the grievant is right, that the Sergeant mentioned patrolling at Country Glen, it is most curious that the fourth officer on duty, Bill Brown, did not patrol in zone 4. Clearly though B. Brown did not come to Country Glen because he was not invited by the other three officers to do so, and most importantly, there was no order from the Sergeant to do so. Brown was occupied in his own zone, and for this extended period appeared to be the only officer in the City pursing active law enforcement. L__ , as seen, conceded that he had no clue what was happening in his zone. If that is the case, then the grievant likewise was neglecting his duty to be patrolling in zone 3.
In other words the need to patrol Country Glen was contrived to provide them with a place to avoid their duties and seemingly sulk over being pulled from the stakeout. Sergeant Brown never saw any patrolling, which is consistent with C__ ‘s admission that they were “hanging out” and L__ ‘s admonition that they were going to “do nothing.”
It would seem reasonable that a police officer, upon being ordered by his supervisor to avoid congregating with two other officers, would understand that he is to remain in his assigned duties only. Brown’s instruction to the grievant only several hours earlier should have been sufficient for the grievant to avoid exactly what he then did with C__ and L__ . This openly defiant act strongly shows that the grievant was intent on having his own way and ignoring orders. He intended to avoid and thus neglect his duty to enforce the law and protect the citizens of this City for this substantial period of time.
The grievant also maintains that he went to Country Glen for his meal break and it is not improper for officers to congregate for a break. There is some evidence that the congregating of officers for meals and breaks has occurred at gas stations and restaurants in this City. But there is no evidence that it would be proper to gather en masse in remote areas of the City for periods longer than the 30-minute meal break. Meeting in public areas is one thing—the visibility the police would have with the public is obvious. Yet, clearly the gathering here is not the case, especially when three-fourths of the City’s police on duty are in effect hiding out in a construction site in the far reaches of the City.
Finally, even if the grievant is correct, that he was at Country Glen to have his meal, his 30-minute break period was up by the time Brown arrived shortly after 3:00 a.m. The grievant said he arrived at 2:30, although the guard places him there much earlier. There is no dispute that the grievant knew when Brown arrived, and by that time, whether using his version of the time or the guard’s account, the meal period was finished. Still, he sat there and did nothing. He did not approach his supervisor. He did not patrol Country Glen by car or foot. He made no effort to return to his own zone. Then, when L__ and C__ left he remained yet another ten minutes before finally speaking with Brown. In other words, for at least a full 30 minutes the grievant sat in his car knowing that his supervisor was watching him. The grievant was not eating and he was not patrolling.
As such, the evidence overwhelmingly shows that this grievant clearly and intentionally neglected his duty on the February 10, 2002 midnight shift when he first planned to meet with the two other officers in this remote area, and then did so for a period well in excess of any meal break.
b. Unbecoming conduct
The public also expects a high degree of respect and confidence in its law enforcement personnel. There is a great deal of dependence on police officers to provide protection and safety, especially in these current times. Any conduct that undermines this perception tends to destroy this important sense of confidence the public places in its law enforcement personnel. Further, relationships with fellow employees are also at stake, especially in this profession where loyalty and respect are needed for self-protection in fighting crime.
There is nothing more basic to the public then knowing and actually observing its police officers uphold and enforce the law. Knowing that a community is being patrolled on a regular basis through the night provides a sense of security and confidence to citizens. The grievant would be hard pressed to explain how he was protecting citizens in zone 3 for the one hour or more he spent in this isolated area in the far western end of this City, or why he chose to remain in his vehicle for about 30 minutes when his Sergeant caught him, or why he failed to leave with the other officers and then remained to have it out with his Sergeant for following him. Nor could he explain how he would be able to assist the one officer who remained in his zone and how he could help him from this remote area if he needed assistance. This is not conduct that becomes a police officer.
The Union says that there is no evidence that anyone was discredited. Moreover, the grievant has many commendations from supervisors, peers and the community where he is highly respected. There is no evidence that Officer Brown, who remained in his zone, was left in any type of danger and even Sergeant Brown ignored his duty by watching these officers for 20 minutes.
It is true that the officers could likely have responded to an emergency call fairly quickly, but of course not as quickly if they had been in their own zones rather than being been immersed in this secluded area at one end of the City. It is also true that the Sergeant could have immediately ordered the three to disperse if he believed that Officer Brown’s safety and that of the citizens was at stake. It is correct that the grievant has had commendations showing that he is respected. However, no one would give him commendations for hiding out in this construction site. Perhaps Brown should have gone in and instructed the three officers to report back to their zones, as he had done earlier with the surveillance. But this would not have undone the fact that they were there for a substantial period without his knowing about it and without any valid purpose.
Finally, it is also true that no one came forward to claim they knew what the grievant did and that this was improper conduct for a police officer. This absence of evidence is of course understandable, given that the grievant and his cohorts were hidden away in the middle of the night in this faraway location. Obviously no one else would know of this hidden meeting. But this is what they intended. Why else go to this remote area? They could have met at a gas station, a plaza or some other area with lights and in the open. To suggest that the grievant escape this charge because he intended to avoid detection is without any merit
c. Falsification of departmental reports
The Union is correct that the DARs have a variety of estimated times as well as large gaps of time that are unaccounted for. Employees have not been warned or disciplined about these lapses. However, there is little to be gained by attempting to figure out how long the grievant was at Country Glen. He states in his own DAR that it was one hour. The security guard says it was longer. There is no time clock, no video and no other way to verify times to conclude that the DAR time was false. Nonetheless, even one hour is too long when the purpose for the time had no validation.
Thus, it is this purpose for the one hour out of his zone, as he stated on the DAR that is of more concern. He wrote that he was patrolling and on a “40”or a meal break. Yet, it is curious that this DAR on February 10 is the only one in a two-month period where the grievant saw fit to write that he was on a “40.” It suggests that he needed an excuse for occupying this one-hour, the time that C__ termed as just “hanging out” and the time spent when L__ was playing a computer pinball game. Each of them admitted that it was wrong for them to be there and by these admissions suggested that none of them, including the grievant, were there to patrol. Brown did not see him patrol for the almost 30 minutes he was there and neither L__ nor C__ mentioned anything about the grievant patrolling. Thus, the grievant’s assertion that he actually patrolled for the one hour or ate his meal for 30 minutes and patrolled for 30 minutes is wrong.
Testimony that the DAR does not have to be 100% correct refers to the times that for the most part are estimated. But the purpose for this time must certainly be accurate. There are any number of valid uses for this information. The evidence suggests that the grievant knowingly placed this false information in this report when in fact he was aware that he had not patrolled for this period of time or for even half of the time he indicated on this DAR. It is falsification and a violation of departmental rules.
d. Meal and rest break
The evidence is much less clear about the meal break. There is some concern as to whether Miami Subs is open as late as the grievant maintains. The grievant produced no receipt and no witness from the restaurant. However, it is the burden of the City to establish that he was not on a meal break and to have this evidence. Accepting the grievant’s version means that for 30 minutes he was on his meal break. The evidence otherwise does not establish that employees had to inform supervision of their meal break. A major concern, however, as seen above, is that the grievant conveniently used the “40” code in this one report, whereas during a two month period in evidence, none of his reports show that he ever used this code. By so doing, as also noted earlier, he gives less credence to his version that he went there to eat.
e. The discharge penalty
The evidence is sufficient for just cause. The grievant clearly neglected his duty by being in this area for this length of time and by not engaging in any duty. This conduct tends to undermine the confidence people have in police and as such it was unbecoming to the grievant’s profession. His attempt to call his actions patrolling when they were not, and to write it on his signed daily report, was an intentional act of falsification. These three acts are especially damaging to morale of a law enforcement agency and certainly to the public trust placed in its law enforcement personnel.
The grievant’s actions occurred despite the grievant being ordered to disperse from an unauthorized surveillance with these same two officers only a short few hours earlier and to return to his assigned zone. Moreover, his actions occurred despite a warning in writing only one year earlier that “an additional event or episode of malingering or misrepresentation in the future shall result in a recommendation of termination?” An “additional event” did occur.
There is no question that the grievant was malingering in this remote area with two other officers for a substantial period of time away from his primary assignment and then misrepresented on his DAR what he was doing there. The warning is mandatory—termination “shall” be recommended and the Chief did so.
The grievant’s position that he believed he was starting with a clean slate and that this discipline would not be used against him is rejected. Nowhere in the addendum is such a statement made. Instead the addendum makes it clear that the penalty was reduced by two days based on some mitigation facts presented for the first time. The addendum is just that, it is not a new suspension with new terms. The Chief made it certain in this notice that he was only changing the term of the suspension and nothing more. An agreement not to use discipline in the future is an important exception to the rule of progressive discipline, and thus it is the type of information that would be placed in writing. Reliance on oral representations, especially one that is as vague as “clean slate,” for the proposition that the discipline would not be used is unconvincing. Even the grievant had to admit that he did not recall the Chief specifically telling him that this discipline would not be used against him if he had future violations.
Accordingly, the evidence is sufficient to find just cause for the violations and the penalty of discharge is appropriate in these circumstances.12
Based on the above and the entire record, the grievance is denied.
* Selected by parties through procedures of the Federal Mediation and Conciliation Service.
1. C__ testified the three officers were angry with Sergeant Brown for calling them away from this stakeout. C__ then related that he would only do residential patrol rather than any active patrol that could require an arrest. At his pre-determination hearing L__ stated that he, too, was “upset” with the Sergeant and decided he would now “do nothing.” Brown did not want all three officers in one zone where they were unneeded.
2. Country Glen is located in the far western end of the City.
3 This record has all other calls whited-out.
4 When asked at the hearing why he chose not to leave with L__ and C__ and then stayed some ten minutes longer, he replied: “I don’t remember. I don’t believe any specific reason.”
5. The grievant’s other DARs for January and February do not have any “40”codes. There is one reference to a “40” in his “Zone book/roll call notes” section on the back of his February 24 DAR. This number is circled. Inasmuch as there is no time frame for this designation, and a “38”is also circled in this notes section in one of his January DARs, it is unclear whether the “40” was meant as a code for a meal break on February 24.
6. At the arbitration he related that it was not uncommon for him to be in Country Glen because he knew people there and would do them a favor and patrol. He did not claim that he was doing any favors on February 10. His log reports for January and February have only two other entries for Country Glen.
7. Alan Wood Steel Co., 21 LA 843 (Short, 1954).
8. It is true that a third statement, this one in writing, was not taken until after the termination decision. But clearly the City relied on the two oral interviews made prior to the decision to terminate. It is this information that is cited in the reports. The written statement after the fact was likely made to memorialize this non-employee’s statement for purposes of litigation.
9. The Union argues that the pre-determination hearing itself was faulty; all the City wanted was for the grievant to confess his wrongs. This is what enabled C__ to get a suspension. However, this was C__ ‘s first misconduct offense, unlike L__ and the grievant who had previous misconduct discipline and warnings. Although C__ was forthright and took responsibility, there is nothing in the Chief’s report to suggest that this accounted for the suspension rather than termination. In fact the Chief observed that even though C__ accepted responsibility and attempted to be truthful, his testimony “was compromised by your sense of loyalty to the other two officers.” He found C__ ‘s statement admirable, “yet [it] promotes the inaccuracy” inasmuch as each officer had a responsibility “to prod the others into fulfilling your duties. . . .” L__ was also forthright at that hearing when he admitted that he used “bad judgment” and did not dispute the times Brown said he was in and out his zone. Still, the Chief concluded that “the facts of your sustained conduct . . . supports a recommendation of termination.”
10. The Union argues that the theory of subsumption is applicable. This is a theory applied in some Florida Public Employee Relations Commission (“PERC”) cases and other Florida administrative decisions. Arbitrators generally have not adopted this theory which rejects charges that can be subsumed or considered within a larger charge. The Union appears to assert that none of the department rules should be considered as violations; the unbecoming rule and violation of rules and regulations rule should be subsumed within each other and the other charges are “inappropriate.” This theory is rejected here. The Union also contends that there is a condonation defense; the City condoned officers eating outside the City, not checking with supervisors before taking meal breaks, and conceding that time frames need not be 100% in the DARs. These points will be considered when the individual rules are discussed.
11. It is also noted that the grievant’s attempt to make his presence there acceptable because he knew residents and patrolled for them, has no basis in fact and only serves to further weaken his credibility. He had to admit that no resident of Country Glen asked him to patrol that night and the records show that he has only been in this area twice during January and February.
12. The grievant’s fine record as well as letters and notes of commendation from the public and his superiors has been closely examined and considered for mitigation purposes. Other than this final incident Sergeant Brown gave good ratings to the grievant. There is evidence that only two months earlier the grievant received counseling from the Chief about his continual tardiness for roll call (six occasions). This is not discipline but is relevant when considering mitigation. The Chief expressed his concern to the grievant that he was not placing the proper importance on his job as a police officer for this City and showing disrespect for Sergeant Brown. This disrespect for Brown is also evidenced in this February 10 incident. In balance, the weight of the commendations and the grievant’s past record do not overcome the seriousness of his improper actions on February 10, especially in the face of the prior discipline for similar conduct and the earlier order on this same date, as discussed above.