Arbitration Award
|
Kitsap
County
and
Kitsap
County Deputy Sheriff’s Guild
118 LA (BNA)
1173
AAA Case No.
75-L-390-00240-02
June 23, 2003
David Gaba,
Arbitrator
Issues
The Kitsap County Deputy Sheriff’s Guild and Kitsap County are
parties to a collective bargaining agreement.
The parties stipulated to the following issue:
Did the County discipline M__ without
just cause, and if so, what is the remedy?
Contract
Provisions
The Collective Bargaining Agreement provides that the Kitsap County
Sheriff’s Office has “the right to discipline or discharge employees for just
cause.” The following
Sheriffs Office Policies are relevant to the alleged violations:
4.01.00
General Behavior
4.01.01
Performance of Basic Duties
4.01.07
Obedience to Rules
4.02.03
Conduct Towards Others (a,b,e)
4.02.17
Recommendation regarding Disposition of Court Cases
4.02.25
Off-Duty Disputes (Response by on-duty officer)
6.01.03
Reports (Timely and accurate)
6.01.06
Reports (general) (a,b,d)
6.03.03
Property and Evidence (Taking property into custody) (B,C)
6.03.15
Property and Evidence (Conversion)
The following Civil Service Rules are relevant to the alleged
violations:
Section
11.3. Discipline—Good Cause—Illustrated. The following are declared to
illustrate adequate causes for discipline; discipline may be made for any other
good cause:
Section
11.3.01 Incompetency, inefficiency, inattention to, or dereliction of duty;
Section 11.3.02 Dishonesty, intemperance, immoral conduct, insubordination, discourteous treatment of the public or a fellow employee, any other act of omission or commission tending to injure the public service, or any other willful failure on the part of the employee to properly conduct himself;
Section
11.3.04 Dishonest, disgraceful, or prejudicial conduct;
Section 11.3.07 False or fraudulent statements or fraudulent conduct by an applicant, examinee, eligible, or employee, or such actions by others with his or her collusion;
Section 11.3.10
Violation of reasonable requirements promulgated by the Sheriff’s Written
Rules;
Section 11.3.11 Any other cause, act, or failure to act which, under law or these Rules, or the judgment of the Commission, is grounds for or warrants dismissal, discharge, removal or separation from the service, demotion, suspension, forfeiture of service credit, deprivation of privileges or other disciplinary action.
Facts
M__ worked for the Kitsap
County Sheriff’s Office as a Reserve Deputy from 1991 until July 1993, when he
was hired as a full-time officer. His assignments to various positions in the
Patrol Division included line officer, traffic officer, and training officer.
He served as President of the Kitsap County Sheriff’s Guild from 1999-2001, during
which time he was a training officer in the Patrol Division. Subsequent to his
tenure as President of the Guild, he was promoted to the rank of Sergeant.
In February 2001, the
Kitsap County Sheriff’s Office Chief of Detectives, Mike Davis, provided
Undersheriff Dennis Bonneville with a Child Protective Services (CPS) complaint
alleging child abuse by Sergeant M__ against his son, Young-man C. The issue had
arisen when school officials had questioned Young-man C about his attempt to
sell nonprescription medications to his fellow middle school students by
passing them off as illegal drugs. Young-man C not only had stated to school
officials that he feared physical retribution if his father found out about the
incident, but also had indicated that he had experienced previous physical
abuse by his father. The school counselor reported the allegations to Child
Protective Services.
Undersheriff Bonneville and Patrol Chief Wayne Gulla, Sergeant
M__’s immediate supervisor, found that there had been a previous Child
Protective Services complaint against Sergeant M__ in 1988, and concluded that
an investigation was warranted. They further decided that an outside agency
should conduct the investigation, and contacted Captain Paul Beckley, Commander
of the Criminal Investigations Division of the Washington State Patrol, with
the proviso that the detective chosen to conduct the investigation not be one
assigned to Bremerton, in order to preserve Sergeant M__’s privacy.
In March 2001, Washington State Patrol Detective Dean Fenton was
chosen to conduct the investigation of the child abuse allegations against
Sergeant M__. He proceeded to collect information from Child Protective
Services and to interview the principal and counselors at Young-man C’s school,
as well as his step-sister, probation officer, and other school staff who were
referenced in the earlier Child Protective Services report. Detective Fenton
also interviewed Young-man C’s mother (and Sergeant M__’s ex-wife), B__, as
well as C__ and K__, ex-girlfriends of Sergeant M__ with whom he had previously
resided.
On March 14, 2001, Detective Fenton asked Lieutenant Loreli
Thompson of the Lacey Police Department to assist him in interviewing Young-man
C. During this interview, Young-man C described alleged physical abuse at the
hands of his father. Detective Fenton went on to interview “Young-man P,” a
friend to whom Young-man C indicated he had confided, and who relayed incidents
of abuse that had been described to him by Young-man C. Detective Fenton then
interviewed Sergeant M__ and his current wife, during which interview Sergeant
M__ denied the allegations of abuse.
On or around March 28, 2001, Detective Fenton prepared an
Investigative Report concluding that Sergeant M__ had abused his son. He
forwarded his report and a “Certification for Determination of Probable Cause”
to Claire Bradley of the Kitsap County Prosecutor’s Office. On May 2, 2001,
Kitsap County Prosecutor Russell Hauge issued a “Decline to Prosecute Notice”
with respect to felony child-abuse charges, for which he considered there was
insufficient evidence to prove criminal assault.
In the course of his
investigation, Detective Fenton discovered allegations of other misconduct on
the part of Sergeant M__, and informed Undersheriff Bonneville. These
allegations were as follows: that Sergeant M__ had been involved in car
insurance fraud prior to being hired by the Kitsap County Sheriff’s Office;
that he had perjured himself in a personal domestic violence court proceeding
while employed by the Sheriff’s Office; that he had taken a gun from a young
man while off duty, and had failed to turn in that gun; and that he had used
his position to attempt to influence other public employees. Undersheriff
Bonneville concluded that these allegations were sufficiently serious to
warrant additional investigation, and therefore referred the case file compiled
by Detective Fenton to the Office of Professional Standards (OPS) of the Kitsap
County Sheriff’s Office,
The Office of Professional Standards was charged with conducting
investigations and providing information to the division chief. The decision,
then, as to whether Sergeant M__ should be disciplined resided with Chief
Gulla, with appeal of such decision to be evaluated by Undersheriff Bonneville.
Sergeant Dave White was the Office of Professional Standards officer assigned
to conduct the internal investigation.
On May 2, 2001, Sergeant White informed Sergeant M__ that he would
be placed on paid administrative leave pending the outcome of the internal
investigation. Sergeant White then recruited Sergeant Ned Newlin to assist him
in the investigation. Over the course of several months the sergeants
re-interviewed relevant parties, although Sergeant White determined that
Young-man C should not be subjected to further interviewing. Additionally,
Sergeant White used the Naval Criminal Investigative Service to locate G__, a
former Navy colleague of Sergeant M__ who was purported to have been involved
in his alleged insurance fraud, and had the Navy conduct an interview with
G__.
On October 1, 2001, Sergeant White wrote a letter to Sergeant M__
outlining his alleged violations and the pertinent rules involved in the proof
of such violations. On October 5, Sergeant White interviewed Sergeant M__, and
on October 15, he ordered Sergeant M__ to provide written responses to two
questions pertaining to the honesty of his responses in the October 5
interview. Sergeant M__ did so, reasserting the truthfulness of his October 5
responses.
At the end of his investigation on November 1, 2001, Sergeant
White forwarded his conclusions to Chief Gulla. Chief Gulla then reviewed the
investigations from both the Washington State Patrol and Office of Professional
Standards in their entirety and sent a letter to Sergeant M__ on December 19,
outlining his preliminary determinations and potential sanctions. Sergeant M__
and the Guild were afforded an opportunity to rebut the allegations at a
Loudermill hearing on January 24, 2002. Chief Gulla then requested that
Sergeant White conduct additional investigations; the subsequent investigations
caused Chief Gulla to change his preliminary determination with respect to
several allegations.
Chief Gulla issued a notice
of termination to Sergeant M__ on March 8, 2002. This notice sustained five of
the seven original allegations and three of the seven expanded allegations. It was Chief
Gulla’s conclusion that six of the eight sustained allegations warranted
termination. The Guild filed a grievance of the termination, which was denied
by Chief Civil Deputy Gary Simpson in a letter dated April 5, 2002. As provided
for in the Agreement, the Kitsap County Deputy Sheriffs Guild filed a demand
for arbitration with the American Arbitration Association.
The Applicable
Standard is Just Cause.
While there is no contractual definition of “just cause”, it is
reasonably implied that the parties intended application of the generally
accepted meaning that has evolved in labor-management jurisprudence: that the
“just cause” standard is a broad and elastic concept, involving a balance of
interests and notions of fundamental fairness. Described in very general terms,
the applicable standard is one of reasonableness: ... whether a reasonable
(person) taking into account all relevant circumstances would find sufficient
justification in the conduct of the employee to warrant discharge (or
discipline.) 1
As traditionally applied in labor arbitrations, the just cause
standard of review requires consideration of whether an accused employee is in
fact guilty of misconduct. An employer’s sincere but mistaken belief that
misconduct occurred will not suffice to sustain disciplinary action. If
misconduct is proven and if the contract allows, another consideration is whether
the severity of disciplinary action is reasonably related to the seriousness of
the proven offense and the employee’s prior record. It is by now axiomatic that
the burden of proof on both issues resides with the employer.
The Guild in its brief makes valuable reference to the “just
cause” standard as seminally defined by Arbitrator Carroll Daugherty, which
incorporates seven tests as follows:
1. Did the company give the employee
forewarning or foreknowledge of the possible or probable disciplinary
consequences of the employee’s conduct?
2. Was the company’s rule or managerial
order reasonably related to (a) the orderly, efficient, and safe operation of
the company’s business and (b) the performance that the company might properly
expect of the employee?
3. Did the company, before administering
discipline to an employee, make an effort to discover whether the employee did
in fact violate or disobey a rule or order of management?
4. Was the company’s investigation
conducted fairly and objectively?
5. At the investigation, did the “judge”
obtain substantial evidence or proof that the employee was guilty as
charged?
6. Has the company applied its rules,
orders, and penalties evenhandedly and without discrimination to all employees?
7. Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in his service with the company? 2
If one or more of the answers to these questions is negative, then
normally the just cause requirement has not been satisfied.
The Applicable Burden of Proof is Clear and Convincing
Evidence.
In a case involving the discharge of an employee, it is the
employer’s burden to sustain its allegations and to establish that there was
just cause for the termination. As a leading treatise in the area notes:
Discharge is recognized to be the extreme industrial penalty since
the employee’s job, seniority and other contractual benefits, and reputation
are at stake. Because of the seriousness of the penalty, the burden generally
is held to be on the employer to prove guilt of wrongdoing, and probably always
so where the agreement requires “just cause” for discharge.3
In this context, it is appropriate for the Arbitrator to demand
clear and convincing evidence. As Arbitrator Richman explained:
The imposition of a lesser burden than clear and convincing proof
fails to give consideration to the harsh effect of summary discharge upon the
employee in terms of future employment.4
An arbitrator can go on to address the question of appropriateness
of disciplinary action only if satisfactory evidence has proven misconduct in
the instance that led to the termination.
The Issues.
The Guild contends that
Sergeant M__ was not accorded due process in the investigations that led to his
termination. This contention includes a number of perceived violations. If it were
to be determined that either the investigation of the Washington State Patrol
or that of the Office of Professional Standards was fatally flawed, then any
allegations that were sustained as a consequence of those investigations would
be a priori eligible for dismissal.
The Guild further contends that the administration has a bias
against Sergeant M__, resulting from Sergeant M__’s Guild activities and
consequent political discord with the administration. The Guild alleges that
this bias played a significant role in the investigation of the Deputy and
influenced the outcome of that investigation.
In addition to the contentions of the Guild, I will address the
allegations that Chief Gulla sustained in his final decision and the remedies
he dictated for those sustained allegations. The eight sustained allegations
were as follows:
Allegation
One: Physical and mental abuse
by Sergeant M__ of his son.
Expanded
Allegation One: Denial by Sergeant M__
that he physically and mentally abused his son.
Allegation
Two: Perjury by Sergeant M__
in a court document filed by him in Kitsap County District Court South on
December 22, 1994.
Expanded
Allegation Two: Denial by Sergeant M__ that
he perjured himself in a court document filed by him in Kitsap County District
Court South on December 22, 1994.
Allegation
Three: Commitment of insurance
fraud by Sergeant M__ in 1989; namely, that he took, from a parking lot, a car
owned by him and his wife and burned it to collect insurance money.
Expanded
Allegation Three: Denial by Sergeant
M__ that the 1989 car insurance fraud incident occurred.
Allegation
Five: Abuse by Sergeant M__ of
his law enforcement position to attempt to influence Prosecutor’s Office
employees regarding decisions to charge his son, Young-man C.
Allegation
Six: Exhibition of
inappropriate conduct displayed by Sergeant M__ toward the School District,
Prosecutor’s Office and Juvenile authorities.
Chief Gulla determined termination to be an appropriate remedy for
allegations one, two and three and expanded allegations one, two and three. If
I concur with him in sustaining any or all of these allegations, I will need to
address the appropriateness of termination as a remedy for the sustained
allegations.
The
Investigation.
The Guild in its brief is exhaustive in detailing the many
procedural and substantive errors that it contends occurred in the course of
the investigations. It concludes that both investigations were seriously
flawed, and is insistent that these flaws are sufficient to justify Sergeant
M__’s reinstatement.
The Guild’s argument that
Sergeant M__ was denied his right to a Loudermill hearing is found to be
without merit, inasmuch as the hearing held January 24, 2002 clearly served
that purpose. Indeed, Chief Gulla revised his decision on some particulars
subsequent to that hearing; this modification certainly supports the argument
that the Guild and the Deputy were accorded substantial due process prior to
the termination decision.
As to the Guild’s argument
that Chief Gulla was not the decision-maker in fact or law, I find the
testimony by both Chief Gulla and Undersheriff Bonneville contradicts this
interpretation, noting that both officers would have had to perjure themselves
for this argument to be valid. Chief Gulla was already retired from the
Sheriff’s Office when he testified; there would nave been no motive for him to
perjure himself by upholding Undersheriff Bonneville’s testimony if that
testimony were inaccurate. In fact, the hearing provided an opportunity for Chief
Gulla, unfettered by the possibility of reprisal—he had already retired—to
share any improprieties that may have occurred during the investigation or
decision to terminate. I found Chief Gulla’s testimony to be credible.
The Guild also contends that Detective Fenton’s investigation on
behalf of the Washington State Patrol was not thorough and fair. I do find some
merit in this argument, in particular as it pertains to Detective Fenton’s lack
of previous experience; his lack of evenhandedness in conducting the
investigation; his conduct of group interviews of school personnel; and his
failure to interview Port Orchard Officer McFann, who had been first to interview
Young-man C after the school contacted the Child Protective Services. In short,
Detective Fenton’s investigation appeared to be biased and overreaching in that
the investigation of Sergeant M__ quickly diverged from the issue of child
abuse into the field of any “bad acts” that Sergeant M__ might have committed
over the previous fourteen years.
Concerning the
investigation conducted by the Office of Professional Standards, the Guild
raises the fact that the two sergeants (White and Newlin) who conducted the
investigation were in direct competition with Sergeant M__ for an imminent
examination for promotion to lieutenant. While this is true, it does not
preclude the investigation having been fair. The Guild contends that the length
of the investigation effectively precluded Sergeant M__ from competing for
lieutenant, in that he was denied access to basic study materials. However,
that interference does not mean that the investigation was inappropriately
long: the issue of the investigation having impeded Sergeant M__’s rights
vis-a-vis the examination is something he could appropriately address with a
civil service grievance. Furthermore,
the motivation for Sergeants White or Newlin to be biased in their
investigation would be far outweighed by the motivation to avoid the discredit
attached to even the appearance of bias. While Sergeant White may have
been handicapped by Detective Fenton’s methods, he produced a thorough and
detailed record and report. Yes, there were deficiencies in the overall investigation;
good work can always be done better. However, the deficiencies were trivial
compared to the majority of investigations conducted in an industrial relations
setting, and I believe that Sergeant White sought to be both fair and
impartial. As stated by Elkouri:
“If however, an arbitrator feels the company has complied with the spirit of the procedural requirement and the employee was not adversely affected by management’s failure to comply, the company’s action may be deemed sufficient.” 5
The Guild also argues that
the termination process for Sergeant M__ took too long. Certainly, the
investigation process that led to Sergeant M__’s termination was a long one,
but its issues were many and complex, and the County argues that the length of
the investigation was a function of the investigators’ thoroughness. The County
in its brief discusses the issue of protecting employees from what it
categorizes as “hasty termination decision(s)”, and references Aerosol
Techniques, Inc., wherein it was concluded that “there is an inherent
unfairness in discharging employees first, then determining whether they
deserve it.” 6 The pivotal
point is that the length of the investigation did not result in prejudice to
Sergeant M__ his property rights were not violated in this regard because he
was on active duty during the Washington State Patrol investigation and on paid
leave with full benefits during the Office of Professional Standards
investigation.
The Guild also objects to Sergeant White’s having allowed Sergeant
M__’s ex-wife, B__, to contact her sister unilaterally with reference to the
timetable for Sergeant M__’s alleged car insurance fraud. The Arbitrator does
find Sergeant White to have been remiss in this regard. However, in light of
the numerous witnesses interviewed and documents received, this oversight is
minor.
The entire question of
political discord between Sergeant M__ and the Sheriff’s administration due to
Sergeant M__’s service as Guild President appears not to be supported by the
facts. The administration promoted Sergeant M__ to sergeant after he was
named Guild President, and the Sheriff approved the end of Sergeant M__’s
probationary sergeant status at the end of the Deputy’s tenure as Guild
President. These two events mitigate the argument that the administration was
largely motivated in its conduct of these investigations by a desire to
persecute Sergeant M__. While Detective Fenton may have been overzealous, he
came from outside of the agency and would have had no animus towards Sergeant
M__. Moreover, even if there were some animosity on the part of the
administration, the central question remains whether Sergeant M__ did engage in
any of the alleged misconducts and, if so, whether appropriate discipline was
applied.
Allegation
One.
With respect to the
allegation of physical and mental abuse by Sergeant M__’s toward his son, I
concur with the Guild that the County failed to establish just cause, and the
allegation is not sustained. The Guild correctly argues that the County failed
to prove by clear and convincing evidence that Sergeant M__ abused his son. Indeed, I would
add that a preponderance of the evidence supports the conclusion that Sergeant
M__ did not abuse his son and I sympathize with him for the pain that he must
have gone through as part of the hearing process.
Almost all of the testimony
concerning Sergeant M__’s alleged abuse of his son (other than the testimony of
K__) was hearsay (or double hearsay)—regurgitation of the stories of an
obviously troubled youth. It is undisputed that Young-man C is a serial liar
who has changed his story of alleged abuse a number of times. Prior to the
allegations of abuse against his father, Young-man C had already established a
reputation in the community as person whose word could not be trusted. The
County makes much of the testimony of Lieutenant Loreli Thompson of the Lacey
Police Department who is experienced in dealing with victims of child abuse.
Ms. Thompson felt that Young-man C was telling the truth when he recanted yet
again and returned to his story of abuse. I find it likely the Young-man C lies
to get out of trouble and generally tends to tell people what he thinks they
want to hear; I believe that Young-man C thought that Lieutenant Thompson
wanted to hear that he had been abused. Furthermore, I find it troubling that
Lieutenant Thompson did not review the Child Protective Services case file
prior to assisting Detective Fenton in interviewing Young-man C. In short,
Young-man C is a sociopath whose testimony cannot be trusted, and there is no
physical evidence to corroborate any of his stories.
One of the remarkable aspects of this case is that no witnesses
testified to any physical marks or bruises on Young-man C and that there was no
third party corroboration of abuse other than the testimony of K__. K__, whose
testimony about a single incident was vague, did not include any specific
examples of behavior that might not have appropriately and lawfully occurred
between any parent and child. Indeed, her testimony would tend to exculpate
Sergeant M__ due to its startling lack of examples of abuse during the
prolonged time she lived with both Sergeant M__ and Young-man C.
In its brief, the Guild makes the assertion that:
... the County cannot subject M__ or any of the other Guild members to discipline for promiscuity, substandard parenting, or any of other of a wide range of potential human frailties or character flaws that Kitsap County deputies or other human beings might possess.
This statement is well put,
and I would agree that, even had the County provided clear and convincing
evidence of some deficiencies in Sergeant M__’s parenting (short of committing
a crime), such deficiencies would not have been relevant to the performance of
his professional duties. I see no evidence of even such shortcomings, much less
of any child abuse: M__ has been a caring and concerned parent in dealing with
his obviously troubled child, and I applaud his efforts in this regard. If this
allegation were the only issue with respect to Sergeant M__’s behavior, his
reinstatement would be unequivocally endorsed.
Expanded
Allegation One.
This allegation is not
sustained, inasmuch as it is attendant on the sustainability of allegation one.
Allegation Two.
The allegation of perjury
by Sergeant M__ in his December 22, 1994 statement in District Court South is
not sustained. This allegation is a result of information supplied by C__ during
the Washington State Patrol investigation of the child abuse allegation. C__
maintained that Sergeant M__ made false statements in a Response to a Petition
for an Order of Protection that she had filed against him. In that Response,
Sergeant M__ stated “our romantic relationship was terminated by me in early to
mid-July 1994.” While I find this statement to have been disingenuous, in that
there was clearly sexual contact between Sergeant M__ and C__ subsequent to
mid-July, 1994, I lack the proper adjectives to describe their liaisons and
concur with Mr. Cline that that later contact could only be categorized as
something other than “romantic.” Therefore, the statement in the Response was
more a matter of “sharp practice” than perjury, and cannot be construed as
unlawful. The Guild makes the point that a critical component of proving
perjury is that the statement under question be clear, unambiguous, and not
susceptible to differing interpretations. Sergeant M__’s statement in his
Response, while misleading, does not meet the definition of perjury. The Kitsap
County Sheriff can certainly discipline Sergeant M__ for possibly misleading
the court; however, the notion of progressive discipline would require a
written warning.
Expanded
Allegation Two.
While the truth or falsity of this allegation is predicated on the
sustainability of allegation two, I would like to note at this point that when
Sergeant M__ testified during the investigation and at the arbitration hearing
that he had not had sexual relations with C__ since mid-July, 1994, it is my
considered opinion that the Deputy was lying. Evidence to contradict his
statement is abundant. In his January 30, 1998 letter to K__, Sergeant M__
stated:
I did sleep with C__ for a couple of months after we started
dating. I could not give you the exact time we quit, I do remember it being
before Halloween (Jin/Jerry went trick/treat with me that year is my reference
[sic].
Both C__ and K__ testified that at one point in December of 1994,
C__ went to Sergeant M__’s house uninvited at a late hour, and that, upon
finding K__ there, C__ began screaming that she herself had slept with Sergeant
M__ only the night before. I find the excited utterance of C__ wholly
believable when taken in concert with Sergeant M__’s letter to K__. Having
witnessed the demeanor of the parties testifying and reviewed the physical
evidence, I believe that Sergeant M__ was not being truthful at this point of
the hearing.
Since it has been
determined that Sergeant M__ did not perjure himself in the court document in
question, this allegation is not upheld. However, it is clear that in the
course of the investigation and subsequent grievance of his termination,
Sergeant M__ repeatedly lied about the actual timeline of his sexual encounters
with C__. I would like to note that his lying about this conduct casts
considerable doubt on the overall credibility of his testimony.
Allegation
Three.
I find that the County has
met the burden of proof and that there is clear and convincing evidence with
respect to allegation three. Therefore, this allegation is sustained.
During Detective Fenton’s
investigation, C__ told him that Sergeant M__ had admitted the particulars of
the theft, burning, and false insurance claim related to the disappearance of
his ex-wife’s Ford Thunderbird in October of 1989. Additionally,
C__ said that the Sergeant had indicated an unnamed Navy colleague whom he had
used as a reference when applying to the Kitsap County Sheriff’s Office
assisted him in the fraud. Detective Fenton went on to obtain detailed
testimony of the disappearance of the car from the Deputy’s ex-wife, B__. The
Naval Criminal Investigative Service was able to locate G__, a former Navy
colleague of Sergeant M__ who was a reference on his Kitsap County Sheriff’s
Office application. Special Agent John Warden of the AFOSI Detachment
interviewed G__ at the request of Detective Fenton, and found G__’s testimony
of the car insurance fraud to be credible.
The Guild emphasizes that the testimony of Sergeant M__’s
ex-girlfriends C__ and K__ should be discounted, characterizing them as
vindictive toward the Deputy. The Guild maintains that C__ and K__ have
remained in communication with each other and with the Deputy’s ex-wife, B__,
and that they have fabricated Sergeant M__’s involvement in the car insurance
fraud. Agreeing that both K__ and C__ intensely dislike Sergeant M__, I have
limited the weight given their testimony accordingly. C__ provided detailed
testimony regarding Sergeant M__’s having a picture of the burnt car on his
toolbox and his having on two occasions made specific reference to the episode.
This testimony alone has very limited weight. Likewise, K__’s testimony that
Sergeant M__ had joked about his knowledge on the subject of car insurance
fraud was not particularly probative.
While most of the witnesses involved in this arbitration have
other agendas (it would be an understatement to say that a number of the
witnesses “disliked” Sergeant M__), I can conceive of no reason why G__ would
perjure himself in this matter. G__ provided testimony at the arbitration
hearing by telephone from Fort Gordon, Georgia. The Guild contends that because
there are discrepancies between G__’s various testimonies his narrative should
be dismissed in its entirety. However, the critical issue not satisfactorily
addressed by the Guild is what possible motivation G__ would have to lie. As
the County correctly points out, G__ has acknowledged personal involvement in a
criminal enterprise, which acknowledgment is clearly against his personal
interests, and could lead to military discipline and demotion.
Sergeant M__ countered by alleging that G__ had an affair with his
then wife B__. However, even if that were true, an affair thirteen years ago
would provide no credible justification for G__ to lie about the insurance fraud.
It is also questionable whether Sergeant M__ would have used G__ as an
employment reference if he had known of G__’s having an affair with his
wife.
Again, I emphasize that the testimonies alone of C__ and K__ would
not have been sufficient to meet the burden of proof of clear and convincing
evidence. However, the fact that it was C__’s testimony that led to the
discovery and subsequent testimony of G__ about the fraud supports the argument
that C__’s testimony was essentially truthful. The testimony of both C__ and
K__ was strongly corroborated by the testimony of G__, whose testimony was
credible and detailed (although as pointed out by Mr. Cline it was also at
times rambling, confused, and contradictory). The very inconsistencies in
detail that the Guild considers critical to the unbelievability of G__’s
narrative are for me additional support for the credibility of that narrative.
It is true that G__’s testimony was rambling and contradictory, but it is
normal after fourteen years to have a muddled recollection of an event; that
G__’s testimony contained discrepancies supports the argument that he was
providing information from his best recollection rather than retailing a
fabricated story.
The County in its brief provides some relevant citations:
Arbitrators and triers of fact always
keep in consideration the fact that a witness may be motivated to testify
falsely by some self-interest.7
One of the most reliable factors to be considered
by an arbitrator in resolving a credibility issue is the existence or
non-existence of a bias, interest, or other motive that would influence a
witness’testimony.8
Discussing the relative credibility of Sergeant M__ and other
witnesses, the County in its brief makes the point that “other witnesses, in
contrast, most often have no incentives to fabricate testimony, and such
unbiased accounts tend to be credited by arbiters.” Surveying the respective
testimonies of Sergeant M__ and G__ with respect to the car insurance fraud, I
must ask myself whose testimony was self-interested and whose testimony went
against self-interest. For me to believe Sergeant M__’s testimony that he had
no involvement in the insurance fraud, C__, K__ and G__ would all have to be
lying. Furthermore, C__ would have had to enter into a conspiracy with G__
prior to her providing information that led Detective Fenton to locate him
(which would have meant that she also would have had to lie about not knowing
his identity).
The Guild greatly emphasizes its contention that Sergeant M__ had
passed two polygraph tests, one at the time he applied for permanent employment
with the Kitsap County Sheriff’s Office in 1993, and another one administered
to him by the Washington State Patrol as part of a background check that same
year. While the test results for the Kitsap County test have unfortunately been
lost, the Guild, the Deputy and the County concur that during that polygraph
exam Sergeant M__ answered questions pertaining to fraud and auto theft,
involvement in serious crime, and falsification or withholding of information,
and that he would not have been hired as an officer had he failed to pass that
polygraph test. As to the second test, administered by the Washington State Patrol,
there is no documentation as to whether it occurred because the record
retention period has passed. Sergeant M__ testified that the examiner told him
that he had passed immediately after the test was administered. In
contradiction, the Guild’s polygraph expert, Richard Peregrin, who has
administered polygraph tests for the Washington State Patrol, testified that
the Patrol never informs test takers of their test results. In any event, it is
immaterial; I believe that Sergeant M__ passed both polygraph
examinations.
Mr. Peregrin was an extremely knowledgeable and compelling
witness. I would note that, had he administered the polygraph test that
Sergeant M__ passed, I would have given more weight to that result. However,
Mr. Peregrin himself testified that the “peak of tension” testing technique
employed by the Kitsap County Sheriff’s Office has an eight to nine percent
inaccuracy rate. He further concurred that the validity of any polygraph test
depends largely on the method and skill of the one administering the test, and
that polygraph tests can be sabotaged by a determined test taker. At the
hearing, no evidence was introduced as to the techniques, training or
competence of the person who administered Sergeant M__’s polygraph.
C__ testified that Sergeant M__ had bragged to her about his
ability to pass what he characterized as lie detector tests, and K__ testified
that Sergeant M__ had joked to her about having lied on the polygraph test he
took as part of the Kitsap County Sheriff’s Office application process. While
the testimony of these two ex-paramours of Sergeant M__ can be discounted, we
can still question the validity of the polygraph examination itself.
Polygraph tests are controversial; the County points to the
frequency of cases in which the overall reliability and admissibility of such
tests are called into question. I do not dispute the fact that Sergeant M__
passed a polygraph exam to qualify for his employment with the Sheriff’s
Office, but that fact is not sufficient counterweight to the evidence presented
(primarily by G__) that he was involved in the insurance fraud. Indeed, the
testimony of the Guild’s own expert witness, Mr. Peregrin, made it clear that
the Deputy’s having passed the test was no assurance that he had not been
involved in the fraudulent activity in question. As stated by the Washington
Court of Appeals:
We hold that until the polygraph achieves general acceptance by
the scientific community, the defendant’s right to (present) relevant polygraph
evidence must bow to accommodate the State’s legitimate interest in excluding
inherently unreliable evidence.9
Expanded
Allegation Three.
Expanded allegation three
is sustained. Given that allegation three is sustained, there is clear and
convincing evidence on the record that Sergeant M__ lied repeatedly about the
insurance fraud, including lying under oath during Kitsap County’s Internal
Investigation into his alleged misconduct.
The Guild can make many
valid arguments as to why an officer should not be discharged for indiscretions
(including crimes) occurring fourteen years ago. What is most problematic to me
is that the facts presented at the hearing support a finding that M__ lied
during an internal investigation and has continued to mislead his employer up
until his time of termination. While many workplace indiscretions do not
deserve termination, it is a core job requirement of a commissioned peace
officer to uphold the faith of his department and the citizens of his
jurisdiction concerning his veracity. This is no longer the case with Sergeant
M__, and his termination for lying during the internal investigation must be
sustained.
Allegation
Five.
Although it need not be
addressed at this point, I find that this allegation is not sustained. Chief Gulla
sustained this allegation, but concluded it warranted discipline short of
termination. The burden of proof for clear and convincing evidence was not met
by the County: while it is possible that Sergeant M__ exhibited an
inappropriate level of anger in the interactions described, it is impossible to
ascertain from the testimony of the involved parties whether Sergeant M__ was
trying to exert undue influence or merely becoming understandably, if
inappropriately, agitated over his son’s circumstances. Understanding how any
parent in Sergeant M__’s position would have been passionate in looking out for
the welfare of his child, I applaud Sergeant M__ for his efforts on behalf of
his son. However, as the County has noted, there is no substantive need to
address either this allegation or allegation six since I have upheld other
allegations whose remedy is more serious.
Allegation
Six.
Although it need not be
addressed at this point, this allegation is not sustained. Chief Gulla
sustained this allegation but concluded it warranted discipline short of
termination. As noted under allegation five, further comment is not necessary
given my having upheld allegation three and expanded allegation three.
Is Termination
Warranted?
Chief Gulla based his decision to terminate Sergeant M__ upon his
sustaining allegations one through three and their attendant expanded
allegations. The only allegations that I agree should have been sustained are
allegation three and expanded allegation three.
The County in its brief
notes that “integrity and honesty are critical requirements for a police
officer. The public expects—indeed demands—that officers be above approach.” This
categorization is supported by the Sheriff’s Office policy 4.01.00, General
Behavior, which states that “a member of this department shall not act or
behave privately or officially in such a manner as to bring discredit upon
himself or the department” and by Section 11.3.07 of the Sheriff’s Civil
Service Rules pertaining to false or fraudulent statements. The County cites
the conclusion of an arbitrator in another instance:
When a Police Officer engages in criminal activity, not only does
he violate his Oath of Office but, more importantly, he destroys the very
fabric of the officer-community relationship.10
The seriousness of the
episode of the insurance fraud and, more importantly, the repeated
misstatements made by Sergeant M__ when questioned about this episode cannot be
minimized. Sergeant M__’s repeated lying about this event is a terminable
offense in and of itself. Sergeant M__ lied about this car insurance fraud on
his 1991 application for employment with the Kitsap County Sheriffs Office, in
his testimony to Detective Fenton during the Washington State Patrol
investigation, in his testimony to Sergeant White during the Office of
Professional Standards’ investigation, at the January 24, 2002, Loudermill
hearing, and at the arbitration hearing. When Sergeant M__ applied for a full
time position with the Kitsap County Sheriff’s Office in 1993, he signed a
document stating that he understood:
should investigation at any time disclose false or misleading information given in my application or interview(s), this may result in disqualification from employment or discharge.
Sergeant M__ lied under
oath during an Internal Investigation and his having done so is sufficient
justification for the decision to terminate him.
Let me note that whether termination
is an appropriate remedy for allegation three by itself could be arguable,
unless Sergeant M__ were to have been convicted of the fraud. Mr. Cline makes
some excellent arguments that insurance fraud fourteen years in the past should
not be a terminable offense. However, there is no need to belabor the question
of whether termination might have been too harsh a remedy for this sustained
allegation alone, the critical factor here is the Deputy’s misstatements during
the Internal Investigation, which constitutes expanded allegation three and for
which, I reiterate, termination is an appropriate remedy.
Conclusion
It is the County’s burden to show, by clear and convincing
evidence that just cause existed for Sergeant M__’s termination. The weight of
evidence did not support the County’s position in on all of the allegations
against Sergeant M__, and I have reversed Chief Gulla’s decision on all but two
of the allegations the Chief had sustained. I have upheld the Chief’s decision
to sustain allegation three and expanded allegation three, and I have also
upheld his conclusion that termination is an appropriate remedy for the latter
allegation.
It is my decision that the County did have just cause for the
termination of Deputy M__ based upon expanded allegation three alone.
The grievance is partially
granted in that allegations one, two, five and six, and expanded allegations
one and two are not sustained. The grievance is partially denied in that
allegation three and expanded allegation three are sustained and M__’s
termination is upheld.
While the collective bargaining agreement of the parties provides
that “the fees and expenses of the arbitrator, shall be provided by the party
ruled against by the arbitrator,” the Guild prevailed on the majority of
instances of alleged misconduct, while the County prevailed on the ultimate
issue of termination. Accordingly all fees and expenses charged by the
Arbitrator shall be equally borne by the parties. This interim award becomes
final thirty days from today’s date.
Notes
1. RCA Communications, Inc., 29 LA (BNA) 567, 571 (Harris, 1961).
See also Riley Stoker Corp., 7 LA (BNA) 764, 767 (Platt, 1947).
2. Enterprise Wire Co., 46 LA (BNA) 359, 363-4 (1966).
3. Elkouri and Elkouri, How Arbitration Works 905 (5th Ed.
1987).
4. General Telephone Co. of California, 73 LA (BNA) 531, 533
(Richman, 1979). See also: Atlantic Southeast Airlines, Inc., 101 LA (BNA) 515
(Nolan, 1993) (using clear and convincing standard); J. R. Simplot Co., 103 LA
(BNA) 865 (Tilbury, 1994) (same); Collins Food International, Inc., 77 LA (BNA)
483, 484-485 (Richman, 1981) (same). The Employer bears this burden of proof
both with respect to proving the alleged violation, and with respect to
demonstrating the appropriateness of the penalty. Pepsi-Cola Co., 104 LA (BNA)
1141 (Hockenberry, 1995).
5. Elkouri and Elkouri, How Arbitration Works 919 (5th Ed.
1997).
6. Aerosol Techniques, Inc., 48 LA (BNA) 1278, 1279-80 (Summer,
1967).
7. J&F Steel Corp., 117 LA (BNA) 1695 (Froct, 2002).
8. Federal Aviation Admin., 112 LA (BNA) 129 (Sergent, 1999). 16
Post-Hearing Brief of Kitsap County.
9. State v. Ahlfinger, 50 Wn.App. 466, 469, 749 P.2d 190
(1988).
10. City of Galion, 112 LA (BNA) 771 (Talarico, 1999).