In re City of Fairborn, Ohio
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.
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.
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.
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.
The City proved by clear and convincing evidence that the Grievant was discharged for just cause. The grievance is denied.