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In re City of Fairborn, Ohio
and
L-48 Ohio Labor Council, Inc.
Fraternal Order of Police
119 LA (BNA) 754
FMCS Case No. 03/02469
Decided October 17, 2003
Reported May 3, 2004
Hyman Cohen,
Arbitrator, selected by parties through procedures of the Federal Mediation and
Conciliation Service
On September
23, 2002, a grievance was filed by the Fraternal Order of Police, Ohio Labor
Council, Inc., the “Union”, filed a grievance on behalf of Z__ with the City of
Fairborn, the “City”, in which it claimed that the Grievant “was terminated
without just cause”. After the City denied the grievance it was eventually
submitted to arbitration.
Factual
Discussion
After he “considered the recommendations” of Chief
of Police Patrick Oliver, City Manager Allen E. Rothermel terminated the Grievant
from employment as a Police Officer, effective September 20, 2002 for violation
of Rule 202—Unbecoming Conduct, Rule 204—Conformance to Laws and Rule 205—Use
of Alcohol Off-Duty”. The events which led to the Grievant’s termination
involve the Grievant’s arrest for operating a motor vehicle, while off duty,
under the influence of alcohol.
At approximately 3:04 a.m. on August 31, 2002, the
Grievant was driving his privately owned vehicle while off duty on I-675 in the
State of Ohio. He was clocked by Highway Patrol Trooper Anthony Kovach
traveling 81 miles per hour in a 65 miles per hour zone. Kovach had visually
estimated that the Grievant was traveling at a speed in excess of the posted 65
miles per hour speed limit. He also received a CB transmission from a truck
driver traveling in the same direction as the Grievant, who told him that the
Grievant nearly hit him when he cut in front of the his truck. When Kovach
activated his emergency overhead lights, the Grievant came to an immediate stop
on the side of an exit ramp of Wilmington Pike.
As Kovach approached the vehicle, the Grievant,
while seated, had his wallet out displaying his police badge. When he closely
approached the driver’s side window, Kovach smelled the strong odor of an
alcoholic beverage, and recognized the Grievant through their professional law
enforcement activities.
Kovach asked
the Grievant for his license and proof of insurance. The Grievant produced his
Fairborn police identification and his military identification. Kovach noticed
that the Grievant’s knuckles were “scraped and bloody”. Kovach asked him about
the blood on his knuckles which “looked fresh” and the Grievant stated
“downtown”. He also asked the Grievant how much he had to drink and he replied,
“two drinks”.
After administering field sobriety tests, which
the Grievant failed, Kovach arrested the Grievant for driving under the
influence and drove him to the Sugar Creek Police Department. Instead of having the Grievant’s vehicle
towed, Kovach drove the vehicle off the right edge of the exit ramp. The
Grievant’s vehicle remained parked, overnight, at the edge of the exit ramp of
Wilmington Pike.
At Sugar Creek, the Grievant consented to a breath
test which showed an alcohol reading of .192 but the sample was deemed invalid
because he blew improperly into the BAC instrument. Since the Grievant’s
conduct was determined to be a refusal to take the test, his driver’s license
was automatically suspended.
After the appropriate paper work was completed, Kovach drove the Grievant to
his residence.
Subsequently
and in the early morning of August 31, 2002, Captain Plemmons of the Fairborn
Police Department was notified that the Grievant had been arrested for
operating his motor vehicle under the influence of alcohol. Captain Plemmons
called the then Research and Development Sergeant, Mikel J. Pardun, whose
duties included conducting internal affairs investigations.
At about
4:45 a.m. on August 31 Captain Plemmons and Sergeant Pardun went to the Greene
County Ohio State Highway Patrol Post in Xenia, Ohio where they met with
Kovach. As they talked to Kovach, Sergeant Pardun wrote notes with respect to
Kovach’s account of the incident. Captain Plemmons and Sergeant Pardun viewed
the “in-car video” of the traffic stop and field sobriety tests of the
Grievant. According to Sgt. Pardun, Kovach told him that he noticed the
Grievant’s hand was scraped and bloody but he believed that it was caused by
the Grievant falling down, and not a fight.
Captain Plemmons and Sgt. Pardun then drove to the
location where the arrest had occurred. They found that the Grievant’s car had
fresh paint damage to the rear left bumper as if the “vehicle hit something or
something hit the vehicle”.
After their investigation at the scene of the incident, Captain Plemmons and
Sgt. Pardun went to the Grievant’s residence during the morning of August 31
where Captain Plemmons informed the Grievant that due to his arrest, he was
under administrative suspension. Sgt. Pardun noted in his “summary of the
investigation” that the Grievant was still under the influence of alcohol.
On September
5, 2002, the Grievant and his Union Representative met with Sgt. Pardun in his
office. During his interview, the Grievant admitted to driving his vehicle under
the influence of alcohol on August 31, 2002. He further admitted that he was
impaired and he believed that he failed the field sobriety tests.
In their September 5 meeting, the Grievant told
Sgt. Pardun that he did not know why he blew improperly into the breath
machine, but he was intoxicated at the time. He related that during the evening
of August 30, he met his friends at “Sharkey’s” bar in Dayton and had five (5)
or six (6) beers after which they went to “Have a Nice Day” bar where he had
several more drinks. He
and his friends then went to the “Asylum” bar. He said that he did not have
anything to drink at the “Asylum” and left without telling his friends. The
Grievant told Sgt. Pardun that he was unsure as to exactly what and how much he
drank but altogether he admitted to having around eleven (11) drinks.
The Grievant did not remember striking any objects
with his vehicle. Sgt. Pardun
went to the three (3) locations referred to by the Grievant but was unable to
determine the cause of the damage to his vehicle.
The Grievant told Sgt. Pardun that he had recently
sought counseling through the employee assistance program which is provided by
the City. He admitted that in the past, he has driven under the influence, but
he has never been as intoxicated as he was on August 31, 2002.
Based upon
his investigation, Sgt. Pardun concluded that the Grievant violated Rules 202,
204 and 215 of the Department’s Rules of Conduct. After Captain Plemmons issued
a pre-disciplinary hearing notice on September 10, 2002 charging the Grievant
with violation of the aforementioned Rules, the hearing, scheduled for
September 13, 2002 was not held because the Grievant pleaded guilty to the
charges and waived his right to a hearing.
Chief Oliver
recommended termination of the Grievant’s employment to City Manager Rothermel
who concurred in the recommendation. The Grievant’s employment was terminated on September 20, 2002.
The Grievant appeared in Xenia Municipal Court on October
29, 2002. He pleaded “not guilty” to the charge of driving under the influence.
The Grievant then pleaded no contest to a reduced charge of reckless operation
of a motor vehicle, a fourth degree misdemeanor. He was found guilty and fined
$250. The thirty (30) days that he was sentenced to serve in jail were
suspended on the condition that he does not have a alcohol related traffic
offense for two (2) years and is to attend a three (3)-day residential
substance abuse program. His driver’s license was suspended for 180 days from
August 31, 2002 with occupational privileges granted as of October 29, 2002.
Discussion
The issue to be resolved is whether the Grievant
was discharged for just cause; if not, what is the remedy to be awarded.
a. The
Arrest
The Grievant
acknowledged that during the evening and early morning hours of August 30-31,
2002 he met with several friends at “Sharkey’s” bar in Dayton. He said that he
drank excessively at “Sharkey’s”, after which he and his friends went to another
bar. He then went to the “Asylum” where he continued to drink excessively. He
said that he drank the entire evening.
Although the
Grievant was intoxicated he decided to drive home. While doing so, it was
determined by Kovach that he was traveling 81 miles per hour in a 65 miles per
hour zone. As I have stated, a truck driver in the area told Kovach by CB
transmission that he had nearly been hit by the Grievant. Kovach had already
observed that the Grievant was exceeding the speed limit of 65 miles per hour.
While pursuing the Grievant, Kovach observed the Grievant cut in front of the
truck driver and continue over to the right lane, and then proceed into the
center lane after which the Grievant entered the right lane again where he
crossed over the edge of the roadway and over the white line. At this point
Kovach turned on his emergency overhead lights and the Grievant came to an
immediate stop. It is undisputed that the Grievant was arrested for operating a
vehicle under the influence.
By driving under the influence, the Grievant
committed an extremely serious offense. The Grievant was off duty when the
critical events leading to his arrest took place. The Union contends that
“[A]rbitrators have consistently held that an employee cannot be disciplined
for off-duty conduct that does not adversely impact upon the employer’s
operations or affect the employee’s ability to perform his job”. In this
connection, in Ohio State Highway Patrol [and FOP], 96
LA (BNA) 613 (Bittel, 1991), the grievant a Highway Patrol Trooper who was
off-duty, was arrested and convicted for driving while under the influence. In
her decision, Arbitrator Bittel stated as follows with respect to the issue of
job nexus:
“The
Arbitrator is persuaded that Management is quite correct in perceiving a DUI
conviction of a state trooper as an extremely serious offense. As pointed out,
this flies directly in the face of the very mission of the organization in
promoting highway traffic safety. The nexus of the offense to the job is
obvious. The trooper is employed to uphold the letter of the law and to enforce
it by arresting violators and participating in their conviction. The
organization would be totally unworthy of respect and entirely ineffective were
its officers to flaunt or disregard the laws they are commissioned to enforce”.
At page 617.
I take
constructive notice that the media attention that has been given to the
criminal offense of driving under the influence has been unrelenting during the
past decade. Its tragic consequences are frequently reported in our daily
newspapers. Among the various duties carried out by police officers is the
critical duty of enforcing the law against drunk drivers and removing them from
the road. As a police officer, the Grievant was required to enforce the very
laws which he, himself, has violated, while off duty.
In graphic
terms consider the scenario where the Grievant, while on duty, has made an
arrest of a citizen for driving under the influence. It can be assumed that he
has made more than one (1) arrest for the same offense. Upon the conclusion of
his shift, he meets friends and drinks excessively. While driving home, he cuts
off a driver, moves in and out of marked lanes and is clocked at 81 miles per
hour in a 65 mile per hour zone. This scenario bears striking similarities to
this case. Clearly, the Grievant’s credibility as a police officer in enforcing
laws relating to driving under the influence has been seriously compromised.
Moreover, his credibility in participating in the criminal justice system for
the purpose of obtaining a conviction of a citizen for driving under the
influence has been seriously undermined by his own reckless conduct on August
30-31, 2002.
As stated in
Ohio State Highway Patrol, the offense of driving under the influence flies
directly in the face of the very mission of the organization in promoting
highway safety. The “nexus of the offense to the job is obvious”. At page 617.
Clearly, the Grievant, while off duty, has flaunted and disregarded the very
laws he has been commissioned to enforce while on duty.
b. Other
Circumstances
During the
administrative investigation the Grievant was interviewed by Sgt. Pardun on
September 5, 2002. At the interview, the Grievant admitted that he was “highly
intoxicated”. Asked how much alcohol he drank on August 30-31, the Grievant
said, “[S]o much I don’t remember about that night”. As an estimate he said
that he had up to eleven (11) drinks, “maybe a couple of shots, 9 beers,
probably in that area”. He also stated that he was so intoxicated, he did not
recall various aspects of the events of August 30-31.
The
Grievant’s admission about his drinking on August 30-31 indicates a reckless
attitude towards his position as a police officer. By driving his vehicle he
demonstrated a reckless disregard for his own safety and the safety of other
drivers. On August 30-31, the Grievant suffered a serious lapse of judgment.
Indeed, he said that he left the “Asylum” bar without notifying his friends! It
is significant that the Grievant admitted to Sgt. Pardun that in the past he
has “drank and drove” his vehicle, but he added that he was “never that
intoxicated”.
The Grievant
was not aware of any damage to the bumper of his vehicle before going out with
his friends. However, there was fresh paint damage on the bumper of his car
which was observed after he was arrested.
Kovach
described the knuckles on his hand as “scraped and bloody”. When Kovach asked
about his knuckles, the Grievant responded “downtown”. Kovach then asked “what
the other guy looked like”, to which the Grievant said, “come on, Tony”. Thus,
the Grievant told Kovach where he scraped his knuckles were bloody, rather than
how his knuckles were injured.
There are
other factual elements in this case which reinforce the inference that the
Grievant was evasive, uncooperative, and less than truthful. In response to
Kovach’s request for his driver’s license and vehicle registration, [a request
which most probably, the Grievant has made on numerous occasions], the Grievant
failed to comply with the request and presented his Fairborn Police Department
I.D. and military I.D. When
asked by Kovach, how much he had to drink, the Grievant said that he had two
(2) drinks rather than the approximate eleven (11) drinks which he admitted to
Sgt. Pardun some five (5) days after the incident.
When it came time for the Grievant to breathe
into a breathalyzer at the Sugarcreek Police Department he failed to breathe
properly. As a result, he was immediately placed on administrative suspension
which automatically terminated his driving privileges for one (1) year.
The Grievant
said that he did not intentionally refuse to blow into the breathalyzer and
that he did not know why the device did not register. As Kovach indicated in
his written report of the events, the Grievant was instructed on how to take
the BAC test for breath. When he was tested, Kovach reported that he would not
blow properly into the machine. At one point, the BAC level measured at .192 before
giving an invalid sample. He was told to blow properly into the machine and
given instructions again. He said he would. He was told that if he attempted to
improperly blow or remove the mouthpiece from the machine again it would count
as a refusal. He again would not blow properly. He was then told “it was going
in as a refusal”.
Thus, the
Grievant was given instructions two (2) times on how to take the BAC test. He
blew into the machine two (2) times and each time it was improper. I have
inferred that the Grievant deliberately refused to properly blow into the BAC.
Indeed, Kovach concluded after the second attempt by the Grievant to properly
blow into the machine it constituted a refusal to do so. The inference that the
Grievant’s non-compliance constitutes a “refusal”, arises from a deliberate act
on the part of the Grievant not to blow properly into the BAC.
Furthermore,
during the internal affairs investigation, the Grievant admitted that he was
under the influence of alcohol and “highly intoxicated” while driving his
vehicle on August 31, 2002. However, he pleaded “not guilty” in court to the
charge of driving under the influence of alcohol. The criminal charge was
reduced to reckless operation of a vehicle for which he received a suspended jail
sentence and was ordered to pay a $250 fine.
The Grievant
said that his plea of “not guilty” to the criminal offense of driving under the
influence of alcohol was on the advice of his counsel. Despite the advice of
counsel, the Grievant knew that his plea was at variance with the truth which
he admitted during an internal affairs investigation. Moreover, advice of
counsel does not constitute justification for the Grievant’s plea of “not
guilty” to the criminal offense of driving under the influence. It is well
established that an attorney in a criminal case is obligated to advise his
client as to whether a plea to a charge is desirable but it is for the client
to decide what plea should be entered. In other words, the Grievant knew or
should have been aware that he makes the ultimate decision on the plea to be
entered to the criminal charge.
Chief Oliver
referred to the Supreme Court decision in Maryland v. Brady that requires
prosecutors to provide exculpatory evidence to attorneys representing persons
who have been charged with crimes. Such evidence, it has been determined,
includes information that could impeach the credibility of a police officer who
made the arrest, such as whether the officer has ever committed a crime, and/or
whether the officer been untruthful. Accordingly, in a case involving the
operation of a motor vehicle under the influence, and assuming that the
Grievant is to be reinstated and is the arresting officer, the information with
respect to the Grievant’s plea of “not guilty” in court which is at variance
with his admission in an internal affairs investigation would have to be
disclosed. The Grievant’s plea, in light of his admission, would adversely
reflect upon his credibility to testify in court.
Defense
counsel for a person charged with driving under the influence would also have
access to the file of the Grievant’s case in the Xenia Municipal Court because
it is a public record. Since the charge was reduced to reckless operation and
in light of the lenient penalty issued by the Court, the likelihood is that
defense counsel would not miss the opportunity to point out to the Court that
the same penalty should be imposed for similar conduct by his/her client.
Accordingly, there is no question that the Grievant’s ability to enforce Ohio’s
laws against driving under the influence has been seriously compromised by his
conduct on August 31, 2002.
c.
Assignment as the D.A.R.E. Officer
D.A.R.E. or
Drug Abuse Resistance Education is a program created by the Ohio Association of
Chiefs of Police, the Ohio Attorney General’s Office and the Ohio Department of
Education. The program was created in response to drug and alcohol abuse which
is recognized as “one of the most serious problems facing our children today”.
Shortly
before August 31, 2002 the Grievant had been selected to be the D.A.R.E.
officer for the Fairborn Police Department. The assignment primarily involves
serving an “education and prevention function” in teaching lessons of the
D.A.R.E. curriculum “on a weekly basis at the exit level of the elementary
schools [5th or 6th grade]”. Classroom instruction is one (1) component of the
program. The Officer is also required to talk informally with students, and
“will also need to meet with parents and faculty members as a part of the
program”.
The D.A.R.E.
Officer Requirement Checklist, in relevant part, provides as follows:
“ ... 2. No sustained disciplinary actions within the past three
(3) years OR current department investigation.
...
8. Exemplary role model in both formal and informal situations.
Personal habits [smoking, drinking, etc.] consistent with the D.A.R.E. Program
...”
On the
D.A.R.E. application form, the Grievant, in relevant part, indicated that he
understands “that the community expects its D.A.R.E. officer to be a role model
on and off duty and I would gladly accept that responsibility.” Clearly the
Grievant’s arrest on August 31, 2002, shortly before beginning the D.A.R.E.
assignment, and his admission during an internal affairs investigation to
driving under the influence disqualified him from serving as the D.A.R.E.
officer. As a result, he is unable to perform his assigned job duties in the
D.A.R.E. position.
In light of
the Grievant’s deliberate and reckless conduct on August 31, 2002, I do not
believe it is wise to require the Department to assign the Grievant to the
customary duties of a Police Officer rather than the duties of a D.A.R.E.
officer to which he had been assigned. The Grievant caused the predicament
which he found himself in, on August 31, 2002. To require the City to return
the Grievant to his former duties, given his serious offense would be in clear
violation of Article IV, Section 4.01A which provides that the “selection,
transfer, assignment * * of police personnel is retained by the City”. As a
result of his arrest for driving under the influence, which is undisputed, and
given his questionable and troubling conduct immediately thereafter, including
his plea in court of “not guilty” to the driving under the influence charge,
the Grievant disqualified himself from the D.A.R.E. position to which he had
been assigned by the City.
d. Fitness For Duty Policy
The City’s
Fitness for Duty Policy was in effect in August, 2002. When questioned about
the Policy on cross-examination Rothermel indicated that the Policy was
applicable to on-duty rather than off duty infractions. He added that “it is
situational”.
The Union
contends that the Policy does not indicate that it applies only to on-duty misconduct.
Such a claim, according to the Union “does not make sense”, because an officer
who drinks on duty is given the opportunity to elect rehabilitation in lieu of
discipline under the Policy but the off-duty officer who has “a few too many
beers” is not given the same opportunity. The misconduct of the off-duty
officer, according to the Union, must be given the same, if not greater
consideration because the misconduct occurred while off-duty.
Based upon a
careful examination of the Policy, I have concluded that it is not applicable
to the facts and circumstances of this case. The Union has relied upon one (1)
sentence for its argument that the City was required to allow the Grievant to
elect rehabilitation through the EAP [Employee Assistance Program]. Thus, under
Paragraph A of “Procedures Applicable to Current Employees”, the first sentence
provides that employees are subject to discipline up to and including
termination for any violation of the City’s Policy. The Paragraph goes on to
state that such employees will be allowed to elect rehabilitation through EAP
in lieu of discipline which is condition upon a) the employee has not been
involuntarily referred for rehabilitation in the past; and b) the employee must
execute a return to work agreement which requires the employee to comply with
the treatment regimen recommended by EAP. The paragraph concludes with the EAP
treatment regimen consisting of drug/alcohol testing during the first year and
“as recommended by EAP during the second year”.
In my
reading of the Policy it does not apply to the offense committed by the
Grievant on August 31, 2002. It must be underscored that the title of the
Company’s Policy is “Fitness For Duty Policy”. The purpose of the Policy is
obvious; it is to see to it that employees are fit for duty.
There is
nothing in the details of the Policy which indicate or from which it can be
inferred that the Grievant’s offense of driving under the influence, under the
facts and circumstances which existed on August 31 come within the intent,
scope and meaning of the Policy. The Grievant, in effect was on a “frolic of
his own”—he was off duty, frequented several bars, drank excessively, was
highly intoxicated and driving to his home when he was stopped and arrested by
Kovach. Had the Grievant collided with another vehicle, causing property damage
and personal injuries, it could not arguably be claimed that he was acting
within the scope of the authority of the City.
In other words, the Grievant was not on duty; nor
was he reporting to duty. Had he engaged in a brawl and assaulted a patron or
damaged property in one (1) of the three (3) bars he went to on August
30-31—such misconduct committed while under the influence of alcohol are not
covered by the Fitness For Duty Policy. These offenses as well as the driving
under the influence offense committed by the Grievant on August 31, 2002 are
not reasonably related to the principle of fitness for duty covered by the
Policy.
The
predominant theme that runs throughout the Policy is to assure that an employee
has the ability to safely and substantially perform his/her job duties. Thus,
Paragraph B provides if employees are using prescribed medications and mood
altering over-the-counter medications and employees are aware that their job
performance is adversely affected, they are required to notify their
supervisor. In Paragraph C, an employee is prohibited from driving a City
vehicle if the employee has consumed any alcoholic beverages within four (4)
hours of reporting to work, or reporting to work overtime.
Paragraph D
goes on to provide that if an employee is involved in an accident in a City
vehicle involving loss of life, or if a person is taken to the hospital or
where the employee receives a citation for a moving traffic violation, the
employee is required to take a drug/alcohol test within eight (8) hours
following the accident.
The Policy
also provides procedures which are to be followed if there is “reasonable
suspicion” to believe an employee is in violation of the Fitness for Duty
Policy. The procedures involving “reasonable suspicion” are obviously not
applicable to the events of August 30-31.
The Policy
also provides that where an employee is convicted of violating any federal,
state or local criminal statute, where the violation occurred on City of
Fairborn premises and/or during work hours must report the conviction to the
Personnel Manager within five (5) working days of the conviction.
In light of
these provisions of the Policy, there is nothing in the events that occurred on
August 30-31, when the Grievant was off-duty, which in any way can be said to
come within the intent, scope and meaning of the Fitness For Duty Policy which
the Union claims provides him with the option to elect rehabilitation through
the EAP rather than discipline. The Grievant committed the offense of driving
under the influence when he was highly intoxicated and off-duty. Since he was
driving home after his excessive drinking, it is not reasonably related to the
principle of being fit for duty and his ability to safely and substantially
perform his job duties. His misconduct was clearly outside the intent and
purpose of the Policy. Clearly, the Policy is not applicable to the Grievant in
light of the events of August 31, 2002.
Conclusion
The Union
claims that the written reports of the events of August 31 as well as the
events leading up to the termination of the Grievant constitute hearsay
evidence and is not entitled to any weight in this case. In this decision, I
have relied upon the written reports of Kovach, Sgt. Pardun, the written
questions of Sgt. Pardun and answers by the Grievant at his September 5, 2002
interview, and the documentation covering the breathalyzer test administered to
the Grievant on August 31, 2002,—all of which reinforces the testimony of Sgt.
Pardun, Chief Oliver and Rothermel. Indeed, the written reports of Kovach and
Sgt. Pardun were relied upon by Chief Oliver in submitting his recommendation
to Rothermel. Although Kovach was not a witness at the hearing, his report of
the details of the events of August 31 was not refuted by the Grievant. Thus,
although Kovach’s written report constitutes hearsay evidence, it has been
given great weight because it was reinforced by the testimony of the City’s
witnesses which was undisputed.
Turning to
another matter, it is claimed by the Union that the penalty of termination from
employment by the Grievant is disproportionate to the one (1) mistake he made
on August 30-31, 2002. However, it must be underscored that not all mistakes
are equal, as evidenced by the numerous published arbitral decisions involving
discharge, many of which involve a “first time mistake”.
The Grievant
was employed by the City between February 1995 and December, 1998 as a
Dispatcher and he also carried out “Jailer Duties”. Since December, 1998, he
has been a Police Officer and a few weeks after August 31, 2002 he was to
occupy the D.A.R.E. Officer position. Until late August, 2002, the Grievant had
an unblemished record. In his letter of recommendation dated May 14, 2002 to
the Director of Training of D.A.R.E., Chief Oliver indicated that the Grievant
had “the qualities that a D.A.R.E. should have to be successful”; and that he
was “confident he will continue to be a positive representative for the
Fairborn Police Department and will be a positive role model for our
children”.
In his
meeting with the Grievant, Sgt. Pardun characterized the Grievant as “very
honest” and that he “accepted full responsibility” for his conduct on August
30-31, 2002. He went on to state that the Grievant is a “good officer and has a
good demeanor”. Sgt. Pardun said that he is “respectful towards people” and
that he watched his children [“baby-sat”] for him.
I have weighed and balanced all of the factors
with regard to the Grievant’s termination and with much sadness I find that the
termination of the Grievant should not be disturbed. In Elyria Board of Education, 86 LA (BNA)
921 (1985) I sustained the termination of a high school “home counselor”
because of her first degree misdemeanor conviction for knowingly permitting her
husband to use her house for “commission of a felony drug abuse offense”. The
counselor’s unlawful conduct was directly related to her general duty to
counsel students and parents with respect to school related problems and
substance use and abuse. I concluded that “the grievant’s conviction for
permitting drug abuse was deemed to be a violation of [the] public trust that
seriously impaired the grievant’s effectiveness as a home counselor”. At page
925. In addition, I stated that the conviction of the Grievant seriously
damaged her relationship and her usefulness as an employee of the Board, in
light of the nature of the general and specific duties that she is required to
carry out. At page 926.
The
evidentiary record does not contain any indication that the episode involving
the Grievant on August 31 was publicized, which occurred in the Elyria Board of
Education decision. Furthermore, the Grievant was not convicted of driving
under the influence which is to be contrasted with the conviction of the “home
counselor” in Elyria Board of Education.
The lack of publicity of the Grievant’s offense is
of no assistance in this case. The Grievant’s conduct on August 30-31 was a
betrayal of the trust and confidence that the City had in the Grievant as
evidenced by Chief Oliver’s recommendation of the Grievant as a D.A.R.E.
officer. The relationship has been irreparably damaged by the Grievant’s
irresponsible behavior. The Grievant’s effectiveness, credibility and the
objectivity, [especially in DUI situations] which is required, if he were
re-assigned to police officer duties has been seriously compromised.
The Grievant
was not convicted of driving under the influence or pleading guilty to this
serious charge because he pleaded “not guilty” to the offense which was
directly in conflict with his admission during his interview by Sgt. Pardun and
at the arbitration hearing. His plea of no contest to a reduced charge of
reckless operation of a motor vehicle cannot be given much, if any weight.
Shortly
after the incident which occurred on August 31, 2002, the Grievant entered the
EAP. He continued to participate in the EAP, apparently to treat alcohol
related problems which he may have or may have had. He continued with the
program into early November, 2002, which he found “helpful”. It is significant
that the Grievant admitted during his interview by Sgt. Pardun on September 5
that he has “drank and drove”, but he was never as intoxicated as he was in
doing so, on August 31, 2002! Unfortunately, his participation in EAP is too
late to save his job but is not too late to be of great value to him with
respect to his future.
Based upon
the evidentiary record, the Grievant violated the following Rules of Conduct of
the Fairborn Police Department:
“Rule 202—Unbecoming Conduct
Employees shall conduct themselves at all times, both on and off
duty, in such a manner as to reflect most favorably on the Department and City.
Unbecoming conduct shall include that which brings the Department or City into
disrepute or reflects discredit upon the individual as an employee of this
Department, or that which impairs the operation or efficiency of the Department
or the individual.
Rule 204—Conformance to Laws
Employees shall obey all laws of the United States and of any
state or local jurisdictions in which the members are present. A conviction of
the violation of any law shall be prima facie evidence of a violation of this
section.
Rule 215—Use of Alcohol Off-Duty
Employees while off duty shall refrain from consuming intoxicating
beverages to the extent that it results in impairment, public intoxication, or
obnoxious or offensive behavior which discredits them or the Department of
City, or renders the members unfit to report for their next regular tour of
duty.”
The preamble
to the Department’s Rules of Conduct, in relevant part, provides that the
“[V]iolation of any of these rules shall be sufficient cause for counseling
and/or progressive discipline up to and including termination of any employees
of the Police Department”. It is sufficient to state that the seriousness of
the violation of Rules 202, 204 and 215 warrants termination.
This dispute
and its outcome has brought much sadness to this Arbitrator and in all
likelihood to everyone involved. The Grievant is young. He is also bright and
well liked by the people with whom he has worked. These qualities will serve
him well in the future.
Award
The City proved by clear and convincing evidence
that the Grievant was discharged for just cause. The grievance is denied.