Prince George’s County
Police George’s County Police
Civilian Employees Association
120 LA (BNA) 682
AAA Case No. 16-390-00381-04
October 4, 2004
Gail R. Smith, Arbitrator
This grievance protests the termination of a police department civilian employee, L__, from employment with Prince George’s County, Maryland. The termination was on March 26, 2004. The grievant was a public safety aide in the Criminal Investigation Division (CID) for the Prince George’s County Police Department (“Department”). She worked for Prince George’s County for twenty-two years. The grievant was a member of the bargaining unit of civilian employees represented by the Prince George’s County Police Civilian Employees Association (“PCEA”).
The termination arose from a series of events that occurred on September 23 and September 24, 2002 involving the grievant, her supervisor in the Prince George’s County Police Department, and the Montgomery County Police Department. On September 15, 2002, the Montgomery County Police Department issued a warrant for the arrest of B__. B__ allegedly poured gasoline over his girlfriend’s body as she slept, and ignited a fire. The girlfriend sustained burns over seventy five percent of her body.
The grievant had known B__ for several years, although their precise relationship was never made clear during the arbitration hearing. The Department alleges that on September 23, the grievant intentionally misrepresented certain key facts about B__’s whereabouts to Detective Dan Fitzgerald from the Montgomery County Police Department while in an interview with Detective Fitzgerald and her Prince George’s County supervisor, Lt. Sean Carney. The Department also alleges that on September 24, 2002, the grievant actively interfered with B__’s apprehension by the Montgomery County Police Department, to the extent that the grievant was criminally charged by the Prince George’s County authorities with “harboring a fugitive.”
Thereafter, the Prince George’s County Police Department’s Internal Affairs Division (“IAD”) investigated the grievant’s conduct (Case SI #:02-21). IAD conducted an official “interrogation” of the grievant on January 15, 2003. IAD issued its report on January 27, 2003 and found that the grievant’s conduct on September 23 and September 24, 2002 was criminal in nature and unbecoming for an employee of the Police Department. The IAD also concluded that the grievant lied during her “interrogation” when she denied that Detective Fitzgerald told her there was an outstanding warrant for B__’s arrest.
The Prince George’s County Police Department subsequently filed criminal charges against the grievant for “being an accessory after the fact” and “harboring a fugitive.” The grievant was tried in court on the latter charge and found “not guilty.” The first charge was nolle prossed. The Department issued a Notice of Intent to terminate the grievant and a Final Notice of Disciplinary Action dated February 11, 2004.
The Final Notice contained three charges against the grievant, which, collectively, formed the basis of her termination. Grievant was charged with violations of Prince George’s County Code, Section 18-160(a) and (b).1 In Charge 1, grievant was alleged to have violated Prince George’s County Code Section 18-160(a) (violation of laws) which provides that “(n)o member of the Police Department shall intentionally violate any laws of the United States, the District of Columbia, any state, or the ordinance of any city or municipality in any state.” Charges 2 and 3 state that grievant violated Section 18-160(b), (violation of laws, false statement) which provides that “(n)o member of the Police Department, under any circumstances shall make any false official statement or intentional misrepresentation of facts.” 2
The PCEA filed a grievance in which it claimed that the grievant’s termination violated Article 8, Section A of the collective bargaining agreement between the PCEA and Prince George’s County, and Sections 16-192, 16-193, 16-195 and 16-241 of the Prince George’s County Personnel Law. Article 8, Section A of the collective bargaining agreement requires that the discharge of an employee must be for “just cause.” Section 16-192 of the Prince George’s County Personnel Law provides that discipline must be “fair, reasonable and equitable.” Section 16-195 of the Personnel Law requires that prior to taking any conduct related disciplinary action, that the employer consider extenuating circumstances which may mitigate against the taking of a particular action against an employee. The PCEA also claimed that the Department violated Article 8 of the collective bargaining agreement when it interviewed the grievant on September 23, 2002, without benefit of union representation.
The Department denied the grievance pursuant to a letter dated May 4, 2004 from Melvin High, the Department’s Chief of Police. In accordance with the provisions of the collective bargaining agreement, the parties submitted the grievance to arbitration.
The question presented in this arbitration is determined by the collective bargaining agreement, and by the Prince George’s County Personnel Law. It is whether the discharge of the grievant, L__, on March 26, 2004, was for “just cause.”
The grievant was a public safety aide for the Prince George’s County Police Department. She was a county employee for twenty two years who was never disciplined prior to her termination from work in 2004. On September 23, 2002, the grievant was stationed at her post at the Department when she received a phone call from a co-worker at the grievant’s place of part time employment. The co-worker informed the grievant that a “white guy” had called for the grievant, and asked that the grievant “D” call him back. The grievant called the number which had been left for her to contact, identifying herself as “D.” The caller, Detective Dan Fitzgerald from the Montgomery Police Department, was trying to locate B__ as a subject in a criminal investigation. B__ allegedly poured gasoline over his girlfriend as she slept and set her body on fire.
Detective Fitzgerald did not identify himself as a police detective to the grievant.3 Detective Fitzgerald who was using a “ruse” to find B__, told the grievant that the house where B__ was staying was being condemned. Detective Fitzgerald told the grievant that B__ should come and retrieve his belongings. Detective Fitzgerald gave his telephone number to the grievant to give to B__. The grievant told Detective Fitzgerald that B__ would call Detective Fitzgerald back in a couple of minutes. Shortly afterwards, Detective Fitzgerald received a call from a person who identified himself as “B__.” Detective Fitzgerald explained the condemnation story to B__, and he told B__ he would have to call him back about a question B__ had of Detective Fitzgerald. After the call, Detective Fitzgerald checked with the Montgomery County Emergency Communications Center and he discovered that B__ had called from a telephone number that was listed for the Prince George’s County government.
Detective Fitzgerald called the same telephone number and the grievant answered stating “CID.” Detective Fitzgerald asked for “D” and was advised that Detective Fitzgerald was speaking to her. Detective Fitzgerald asked “D” again to have B__ call him. “D” told Detective Fitzgerald that she would have B__ call Detective Fitzgerald in five minutes. Within five minutes B__ called Detective Fitzgerald. During the conversation Detective Fitzgerald asked B__ for his “Aunt D’s” name and address. B__ advised Detective Fitzgerald that “D” was listening to the conversation on the other line. “D” who was silent to this point, spoke up and gave her name and address as that of the grievant to Detective Fitzgerald. After the telephone call ended, Detective Fitzgerald checked with the Montgomery County Emergency Communications Center, and again found that the telephone number belonged to the Prince George’s County government.
On September 23, 2002, Detective Fitzgerald drove to Prince George’s County police headquarters and spoke to Lt. Sean Carney, who was the grievant’s supervisor at the time. Detective Fitzgerald informed Lt. Carney about the “background” of the case, including that the grievant called Detective Fitzgerald from the Prince George’s County Police Department CID front desk telephone number. Detective Fitzgerald told Lt. Carney about the grievant monitoring his conversation with B__, that Detective Fitzgerald did not realize the grievant was on the line with Detective Fitzgerald and B__.
Lt. Carney brought the grievant back for “questioning.” Lt. Carney stationed Detective Mike Rubin at the front desk to answer the telephone. Detective Fitzgerald introduced himself to the grievant and informed her that he had an arrest warrant for B__. After she was informed about the arrest warrant, the grievant stated in response to Detective Fitzgerald that B__ had told the grievant “the fire was an accident.” Detective Fitzgerald also informed the grievant that he was placing her under surveillance. Detective Fitzgerald asked the grievant for B__’s telephone number. The grievant replied that she did not know how to contact B__. Detective Fitzgerald countered that the grievant contacted B__ when Detective Fitzgerald, B__ and the grievant were on the telephone. The grievant gave Detective Fitzgerald the telephone number of either B__’s mother or sister, as a place where B__ could be reached. The number which the grievant gave to Detective Fitzgerald was 301-773-0912. A brief time afterwards, Detective Rubin told Detective Fitzgerald that an individual who identified himself as “Samuel,” “D’s” nephew, had called the front desk. The person who called requested that “D” call him back at 301-773-9012.
The Prince George’s County Police Department asserted that only Detective Fitzgerald asked questions or spoke during the interview. The grievant testified that Lt. Carney also asked questions and spoke to her. In any event, the Prince George’s County Police Department treated Lt. Carney as participating in the interview and charged the grievant with making a false statement to agents of both Police Departments.
At no time prior to, or during the meeting between the grievant, Detective Fitzgerald and Lt. Carney, did the employer inform the PCEA that the grievant was being questioned. Lt. Carney testified that he did not realize the grievant’s job might be in jeopardy until the grievant denied forwarding a telephone call from CID to B__. Following the meeting, Lt. Carney directed the grievant to sit in a chair away from her normal post and to stay there after her shift ended. The PCEA learned of the grievant’s interview after it was concluded, and arrived soon thereafter. Lorrie Taylor, PCEA’s grievance chairperson, testified that she and another union representative arrived and spoke to the grievant. The PCEA was informed that the matter was being transferred to the Internal Affairs Division (IAD) which investigates employee misconduct. A short while later, Elisha Lockhart and Hector Valdez from IAD formally advised the grievant that IAD was opening an investigation.
On September 23, 2003, the PCEA
representatives complained to Roy Washington, the Director of the Office of
Professional Responsibility in charge of IAD, about the employer’s failure to
allow the grievant to have a union representative at the interview with
Detective Fitzgerald and Lt. Carney.
The next day, a day off for the
grievant, the grievant picked up B__ from an apartment complex in
Subsequently, the Prince George’s County authorities brought criminal charges against the grievant for “being an accessory after the fact” and “harboring a fugitive.” The grievant was tried on the latter charge in the Circuit Court for Prince George’s County on September 24, 2003, and she was found “not guilty.” The charge of accessory after the fact was nolle prossed.
In a “Final Notice of Disciplinary Action” dated February 11, 2004, the Department terminated the grievant’s employment, effective March 26, 2004. To support its disciplinary action, the Department listed four charges against the grievant (the employer withdrew the fourth charge before the arbitration hearing). The other three charges are as follows:
Charge #1: Prince George’s County Code, Section 18-160, Violation of laws, which states: (a) “No member of the Police Department shall intentionally violate any laws of the United States, the District of Columbia, any state, or the ordinance of any city or municipality in any state.”
To wit: That on September 24, 2002 in the 1900 block of Belle Haven Drive, Seat Pleasant, Maryland after being informed that B__ was wanted for a felony, you knowingly offered assistance to B__ (Harboring a Fugitive) who was resisting lawful apprehension by police officers for a felony offense when you drove B__ from the State of Maryland to the District of Columbia.
Charge #2: Prince George’s County Code, Section 18-160 Violation of laws; false statement, which states: (b) “No member of the Police Department, under any circumstances, shall make any false official statement or intentional misrepresentation of facts.”
To wit: That on September 23, 2002 at the Criminal Investigations Division, 7600 Barlowe Road, Palmer Park, Maryland you knowingly misrepresented information during an interview to Detective Dan Fitzgerald (Montgomery County Police Department) and Lieutenant Sean Carney (Prince George’s County Police Department) when you denied transferring telephone calls from your workplace for B__ to Detective Fitzgerald and provided a false telephone number to Detective Fitzgerald and Lieutenant Carney for the location of B__.
Charge #3: Prince George’s County Code, Section 18-160 Violation of laws; false statement, which states: (b) “No member of the police Department, under any circumstances, shall make any false official statement or intentional misrepresentation of facts.”
To wit: That on January 15, 2003 at the Office of the Special Investigative Team, 6707 Groveton Drive, Clinton, Maryland you knowingly misrepresented information during an interview to Lieutenant Arthur L. Collins when you denied that Detective Dan Fitzgerald and Lieutenant Sean Carney told you that B__ was wanted for a felony crime.
In Charge 1, the Department contends that the grievant intentionally violated the law by “harboring a fugitive.” The charge has an explanatory note which states that after being informed that B__ was wanted for a felony, the grievant “... knowingly offered assistance to B__ (Harboring a Fugitive).” The grievant’s conduct at issue in both the criminal and arbitration proceedings in that regard is the same. The Department contends that the more lenient “clear and convincing” (“or by a preponderance of the evidence”) standard should be applied to evaluate the facts in this case, rather than the standard of proof used in criminal court which is “beyond a reasonable doubt.”
Strict scrutiny of the allegations is in order, where, as here, the alleged misconduct is of a kind recognized and treated as a crime, and punished by the criminal law. Armour-Dial, 76 LA 96 (1981); see also Columbia Presbyterian Hosp., 79 LA 24 (1982). But even under the preponderance of the evidence standard, it is concluded that the Department failed to sustain its burden as to Charge 1.
The Department defined “harboring” as “offering a fugitive concealment, lodging, care after concealment, or obstruction of an effort of an authority to arrest the fugitive.” The grievant set up “three way” calls between B__, Detective Fitzgerald and the grievant, rather than to have B__ directly contact Detective Fitzgerald. She also monitored Detective Fitzgerald’s conversations with B__. Thereafter the grievant lied when she told Detective Fitzgerald that she did not know how to contact B__. She then intentionally gave the wrong telephone number for B__ to Detective Fitzgerald.
The grievant also picked up B__ the next day and drove around with him for thirty minutes. According to the grievant, she was trying to get B__ to turn himself in to the police. The grievant’s alleged motive for driving around with B__, (convincing him to go to the police), is clearly debatable, given her lack of candor on September 23 and 24, 2002 and on January 15, 2003. Nevertheless, the evidence to this point is insufficient to meet the definition of “harboring a fugitive.”
The Department alleged, but failed to prove, that the grievant became aware of the surveillance team, and that she tried to “lose” the detectives who followed the grievant and B__ on September 24, 2002; that the grievant drove past a police station although she stated she was trying to convince B__ to turn himself into the police; and that the detectives were able to apprehend B__ only when the two came to a stop at a Metro station. The Department did not present any witnesses to testify about these claims. The Department presented only hearsay evidence about these additional and very critical allegations.
At the arbitration hearing, the Department submitted the written statements (“Recorded Interview Scripts”) from the two detectives who allegedly observed the grievant and B__ on September 24, 2002. Since the detectives were not present at the arbitration hearing, they were not made available for cross examination and their demeanor could not be observed.
The grievant’s testimony, both at the arbitration hearing and during her January 15, 2004 interview, was certainly questionable in a number of instances. But at stake in this proceeding is the grievant’s job which she has held for twenty-two years.
Moreover, a jury previously failed to find the grievant guilty of “harboring a fugitive” in criminal court. As noted, the same type of charge is at issue here. The PCEA claimed that since this is true, the jury’s not guilty verdict binds or precludes an independent fact finding of the grievant’s conduct in the arbitration proceeding. The fact, however, that an employee has been acquitted of criminal charges based upon the incident for which management has assessed discipline does not preclude an arbitrator from conducting a subsequent, independent fact finding. Elkouri & Elkouri, How Arbitration Works, p. 925 (5th ed. 1997).
A criminal court acquittal may be introduced into evidence in support of an employee. While the court acquittal here was not determinative, the fact that a jury, for whatever reason, previously acquitted the grievant, was one of many factors to be considered. On Charge 1, therefore, I conclude that the Department failed to sustain its burden, even under the “preponderance of the evidence” standard of proof.
As to Charges 2 and 3, on the other hand, the Department certainly
carried its burden. The grievant “... knowingly misrepresent(ed) or provide(d) false statements” to Detective Fitzgerald, to her
supervisor, and during her
The gravamen of Charge 2 arose from the grievant’s interview by Detective Fitzgerald and Lt. Carney. On September 23, 2002, Detective Fitzgerald called the grievant in order to elicit information as to B__’s whereabouts. At the interview, when Detective Fitzgerald asked the grievant for B__’s number, the grievant at first denied, but then conceded that she had a number for B__. But then she intentionally gave a wrong number to Detective Fitzgerald. The grievant’s claim that she “accidentally” transposed the numbers was not creditable, given the grievant’s conduct up to that point (monitoring the calls, denying that she “patched” the call and then recanting). The grievant clearly had an obligation not to deceive or inhibit the officers in their pursuit of suspect B__.
Charge 3 states that during the January 15, 2004 interrogation, the grievant denied that Detective Fitzgerald informed her that there was an outstanding warrant for B__’s arrest. The grievant reiterated her position during the arbitration hearing—that Detective Fitzgerald had not informed her about the warrant. Lt. Carney credibly testified to the opposite—that Lt. Carney was present when Detective Fitzgerald told the grievant about the warrant. Lt. Carney also credibly testified that on September 23, 2002, the grievant told Detective Fitzgerald that B__ “told her it was just an accident.” Therefore, the grievant acknowledged knowing about an incident that to the average person would be a serious, far from trivial matter. In addition, Lt. Carney’s recollection was supported by the grievant’s assertion on the record during her January 15, 2004 interrogation, that the grievant was trying to get B__ to turn himself into the authorities. As the Department contends, why would the grievant make this statement if she did not know about the warrant?
There is sufficient evidence to uphold Charges 2 and 3 against the grievant, but not Charge 1. The question next presented is whether the Department discharged the grievant for “just cause,” as required by Article 8, Section of the collective bargaining agreement and Section 16-192 of the Prince George’s County Personnel Law. Section 16-193 of the Personnel Act provides that the employer may take disciplinary action against any employee who has committed an act which violates or fails to comply with any duty, obligation, or requirement imposing a standard of conduct or behavior on such employee by virtue of the provisions of any criminal or civil law or statute. Section 16-193 provides for several different types of disciplinary actions which management can initiate against the employee including a (1) written reprimand, (2) forfeit annual leave, (3) fine of up to 5% of salary, (4) suspension for up to 20 days and demote employee and reduce salary by 10% and (5) dismissal. Section 16-193(c)(1) which is the section about dismissals, provides that the “... dismissal of an employee shall constitute the most severe type of all authorized disciplinary actions.” It says in addition, “the dismissal of an employee shall be taken only when the act or acts of the employee which constitute the grounds for disciplinary action are, in the judgment of the employee’s appointing authority, serious in nature.”
The section goes on to list a number of different acts which are “sufficiently serious” in nature to warrant dismissal, including subsection (D), which states “(w)here the employee commits an act or a series of acts which call into serious question the employee’s trustworthiness and/or integrity in the continued performance of the employee’s assigned duties and responsibilities.” The Department has grounds under subsection (D) to discharge the grievant for “just cause.”
Beyond that, Personnel Law Section 16-195(a)(1) entitled “Evaluative Factors” requires that prior to taking any conduct related disciplinary action otherwise authorized by the Personnel Law, “... the appointing authority ...shall insure that the following factors, among others, have been evaluated and taken into consideration:
(A) The severity of the particular disciplinary action in relation to the nature of the particular act or acts of the employee constituting the grounds for disciplinary action;
(B) Any extenuating circumstances concerning an employee which may mitigate against the taking of the particular action against the employee;
(C) An employee’s past record of conduct or performance ...”
The PCEA contends that even if the grievant violated any rules or regulations, that a form of discipline less severe than termination is the appropriate result. The grievant’s conduct was reprehensible but she should be demoted, and her salary reduced by ten percent, in lieu of termination, primarily because she was a county employee for twenty-two years. Section 16-193(c)(2) provides that an employee may be demoted rather than dismissed where the employee’s past conduct record and/or other extenuating circumstances mitigate against the taking of a dismissal action against the employee. Quite obviously, long service with an employer, particularly, as here, apparently unblemished, is a definite factor in favor of the employee whose discharge is reviewed through arbitration.
The lack of union representation during the grievant’s interview on September 23, 2002, is also a factor to consider. Article 8, Section C of the parties’ collective bargaining agreement states that where an employee is to be the subject of an investigatory interview or other meeting which may result in discipline, he/she shall be notified of his/her right to have a union representative present and to have 5 days notice thereof. Section C contemplates that if an “immediate interview” is required and the designated representative is unavailable, the employee may select another PCEA representative.
Detective Fitzgerald met with Lt. Carney because he was suspicious about the grievant. Detective Fitzgerald explained his suspicions to Lt. Carney. From the beginning Lt. Carney had reason to believe that his interview with the grievant could possibly, and it did lead to, the grievant’s criminal prosecution and termination. As such, the interview was subject to Article 8 protection.
The Department denied that it violated Article 8 of the collective bargaining agreement because Detective Fitzgerald is not an employee or agent of Prince George’s County or of its police department. According to the Department, Detective Fitzgerald was acting only in his capacity as a police officer investigating a crime. Both Detective Fitzgerald and Detective Carney conducted the interview. While Detective Fitzgerald may have done most of the questioning, Detective Carney remained in the room.
The Department also contended that Article 8 is inapplicable because Detective Fitzgerald interviewed the grievant as part of a criminal investigation. While a criminal investigation was certainly ongoing, the grievant was also interrogated as an employee. As the PCEA correctly asserted, the grievant was interviewed as an employee because the possibility of discipline would create pressure to cooperate.
Because the grievant was an employee, Lt. Carney could remove the grievant from her assignment and direct her to his office to respond to questions about the investigation. If the grievant had simply been a member of the general public, she would not have been directed to go to Lt. Carney’s office, would not have been told to sit on a chair in the hall and stay there, and would not have been directed to stay after her shift ended and continue sitting in a chair. The Department conceded that a non-employee citizen in the grievant’s position would have no obligation to speak with the police in these circumstances.
There is nothing in Article 8 that suggests that it does not apply to interviews that are criminally related. In fact, Article 8 contemplates that the discipline procedures covered by that Article could be related to a criminal investigation. Section I, for example, specifically states that the 90 day rule contained therein does not apply where the alleged violations are also criminal violations or to non-criminal violations which are related to an active criminal investigation. There is no such exception under Section C, although Section C does state that the 5 day notice rule does not apply where an immediate interview is required.
—— Award ——
The Department failed to sustain its burden with respect to Charge 1 of the Final Notice of Disciplinary Action. As to Charges 2 and 3, on the other hand, the Department carried its burden. Based upon the grievant’s twenty-two years of service as a Prince George’s County employee, the grievant is to be reinstated, but not to the position which she previously held. The grievant shall be demoted and her salary reduced by ten percent. The Department’s denial of union representation to the grievant in the initial interview was also a determining factor in the decision to demote, and not terminate, the grievant.
The Department and PCEA representatives are to meet immediately and confer with one another about the availability of a suitable lesser position. The parties are to jointly agree upon the grievant’s new position. The grievant can be demoted to any vacant position which she is qualified to perform. Whatever salary she is paid, however, is to be ten percent less than that which she earned as of March 26, 2004.
The grievant is to be reinstated to her new position, but she is not entitled to receive any backpay during the period she was “terminated,” that is, from March 26, 2004 until the date of this Award. The grievant is to be paid at the reduced salary, as of the date of this Award, with payment due at the completion of the first pay period following her actual return to work. The grievant is to be reinstated to her new position within a reasonable period of time from the date of this Award, but in any event within thirty days. I shall retain jurisdiction in this case for a period of thirty days, while the parties confer about the grievant’s new position.
The grievant is sustained in part.
1. The Final Notice contains a fourth charge which is that the grievant violated Section 18-146 by exhibiting unprofessional conduct. The Department withdrew this charge prior to the arbitration hearing.
2. Section 18-160 applies to civilian employees by virtue of Section 18-146, which provides that the conduct of civilian employees shall be governed by the rules and regulations adopted for the administration and discipline of the Department.
3. Detective Fitzgerald did not appear at the arbitration hearing. The grievant’s supervisor, Lt. Carney and Lt. A. Collins who conducted the Internal Affairs’ investigation, were the employer’s only witnesses.