City of Houston
118 LA (BNA) 702
AAA Case No. 70-390-00829-02
May 13, 2003
Harold E. Moore, Arbitrator
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.