Arbitration Award
|
City
of Houston
and
118
LA (BNA) 702
AAA
Case No. 70-390-00829-02
May
13, 2003
Harold
E. Moore, Arbitrator
Issues
Was the seven (7) calendar days temporary suspension of Police Officer
G__, for just cause? If not what is the proper remedy?
The Appellant was temporarily
suspended for seven calendar days for acts and conduct in violation of Rule V,
Section VI, Subsections (d) and (k) of the Police Officers' Civil Service Rules
of the City of Houston, Texas. These rules pertain to neglect of duty and
violation of police department rules or special orders. Specifically, he is
charged with violation of General Order 200-08(3) which mandates that Police
Officers will abide by the laws of the jurisdiction they are in, and Section
545.060(a)(1) of the Texas Transportation Code which states: “An operator on a
roadway divided into two or more clearly marked lanes for traffic shall drive
as nearly as practical entirely within a single lane.”
On June 25, 2002, at 11:05 P.M. the Appellant was on patrol duty. He
responded to an emergency assistance call from another Police Officer. It was
classified as a Priority One call, which authorized a Police Officer to use
emergency equipment, negate the posted speed limit but required the Police
Officer to drive with due caution and maintain control of his patrol car. The
Appellant was new to the area. When making a sharp turn he observed a large
pole directly in front of his vehicle. To avoid hitting the pole he ran into a guardrail
that had been placed in front of a residence. The Appellant was unable to open
the driver side door of the vehicle and exited the vehicle from the passenger
side. The airbags on the patrol car did not deploy. The patrol car, the curb
and metal guardrail were damaged. The Appellant described his condition after
the collision as slightly dazed. He was ordered by a Traffic and Accident
Division Sergeant to go to the hospital. No injuries to the Appellant were
determined. The incident was investigated by the Department's Traffic and
Accident Division and it is their conclusion that the Appellant was at-fault.
The Appellant's Division Command
concurred in the at-fault determination and based on the Police Department's
At-Fault Accident Rating Worksheet, which assigns a numerical severity
indicator to six (6) categories, assigned the disciplinary range category of
“B” ...
The Disciplinary Range Category
Assignment used is: 0 to 3.99 points is a Category A violation; 4 to 8.99
points is a category B violation; 9 to 12.99 points is a category C violation;
and 13 or more points is a category D violation.
The Categories of Disciplinary
ranges used by the Houston Police Department are: A is a written reprimand; B
is from 1 to 3 days suspension; C is 4 to 9 days suspension; D is 10 to 15 days
suspension and E is 16 days to Indefinite Suspension, which is tantamount to
Discharge. This resulted in the Appellant being assigned 6.8 cumulative points,
which is in the Disciplinary Range of Category B. (That is 1 to 3 days.)
In accordance with Police Department Policy and Procedures the Accident
Review Board (A.R.B.) reviewed the matter. The A.R.B, which was composed of an
Assistant Chief of Police, Captain, Lieutenant, Sergeant and two Officers, all
from a different Division than the Division that the Appellant was working,
recommended that the Appellant be assessed a four (4) days suspension. The
Appellant had two prior at-fault driving accidents within the last two years.
The Acting Chief of Police did not accept the recommendation of the
Accident Review Board and raised the penalty to seven (7) days.
The Appellant admitted that he was at-fault and that he deserves some
discipline. He is appealing the amount of discipline he was assessed.
The City points out that it is the prerogative of the Acting Chief of
Police to change the recommendations of the Accident Review Board. They point
out that even when a Police Officer is authorized to respond to a Priority one
call the Police Officer is to maintain control of his vehicle. The City argues
that due to the Appellant's record of two other at-fault accidents within the
last two years the seven days suspension is warranted. They point out that the
seven days is within the Category C range of discipline.
The City also urges that the
seven days is within the Department's policy of assessing the lesser intrusive
discipline in disciplinary cases. They point out that the Category C range is
from 4 to 9 days and the 7 days is in the middle range when the two previous
at-fault accidents are taken into consideration. They point out that the reason
for the discipline is to have the Appellant conform to acceptable driving
habits.
The City argues that the
discipline is proper and that the Appellant's appeal should be denied.
The Appellant argues that the
prior at-fault accidents were minor accidents. It is pointed out that the
Appellant was in a “catch-22” situation in that he was required to go to the
hospital for a check up which automatically assesses him 2 points on the
Severity Indicator scale. The Appellant did not believe it was necessary for
him to be transported to the hospital, however he was ordered to do so by the
investigating sergeant at the scene of the accident.
The Appellant concludes his argument by requesting that the Police
Department follow its own policy. He admits that the accident was his fault but
that the Accident Review Board recommended that the discipline be for a
four-day duration.
The Houston Police Department
has, to its credit, an objective procedure of determining at-fault accident
rating. The Severity Indicators, except number 2, injury sustained by
employees, is clear and concise. Severity indicator No. 2 automatically assesses
2 points if an employee is transported to the hospital. Those two points are
more than 50% of the 3.99 points required to keep the incident in the “A”
Disciplinary Range Category. The Appellant maintains that if the 2 points he
received for going to the hospital were removed it would result in a Cumulative
Point total of 4.8, which is barely in the “B” Disciplinary Rage Category. The
hearing examiner recognizes that the City has a legitimate concern not only for
the physical condition of its employees involved in an accident, it also has
the legitimate concern for any subsequent liability that may arise.
Furthermore, a hearing examiner does not have the authority to change, modify,
or add to a reasonable procedure promulgated by management.
In
the instant case, using the procedure adopted and promulgated by management,
the Accident Review Board, which was composed of five Police Officers from
another Division, evaluated the situation. They took into consideration the
Appellant's previous at-fault accident record and collectively arrived at the
four days suspension.
The Acting Chief of Police is not required to accept the recommendation
of the Accident Review Board. It is his prerogative to amend their
recommendation. However, employees are entitled to rely upon processes and
procedures that affect their conditions or employment. When, as in this case,
there is a change in the established practice regarding the recommendation of
the Accident Review Board, whether it is more or less severe, it is incumbent
upon the ultimate decider to have an explanation for the change. If unilateral
changes are made without explanation, the otherwise excellent program has a
material effect on the employee. In this case the Accident Review Board, taking
into consideration the Appellant's previous driving record, assessed a four-day
suspension. This hearing examiner was not furnished any compelling reasons to
justify an increase to seven days.
The Appellant's seven-day suspension shall be reduced to four days. He
shall be paid for the difference.