Arbitration Award


In re

County of Shasta Sheriff’s Department


Shasta County Deputy Sheriff’s Association


120 LA (BNA) 377

CSMCS Case No. ARB-03-2020


August 12, 2004


C. Allen Pool, Arbitrator


Stipulated Issue 


Did the County have just cause to terminate G__? If not, what shall be the remedy? 


Relevant Provisions of the Memorandum of Understanding 


Article XV. Disciplinary Action 


A. Basis for Disciplinary Action. The tenure and status of every unit employee is conditioned on reasonable standards of personal conduct and job performance. Failure to meet such standards shall be grounds for appropriate disciplinary action. Grounds for discipline of any employee in the classified service include but are not limited to the following: 


5. Violation of any lawful or reasonable regulation or order made or given by a superior officer. 


13. Conduct unbecoming a County employee which indicates the employee is unfit to perform the functions while on duty, while attending any event related to employment, while using a County vehicle, while on County owned or leased property, or while in uniform. 


B. Procedures for Disciplinary Action 


1. Types of Discipline. Three types of discipline are recognized for purposes of applying one of the procedures under this article, they are: 


a. Written Reprimands. A reprimand, the details of which are committed to writing and placed in the employee’s personnel file. 


b. Intermediate Disciplinary Action. Suspensions without pay, demotion or reduction in pay. 


c. Severe Disciplinary Action. Discharge. 


2. (5) (e) The Arbitrator shall determine whether to sustain, reject, or modify the action discharging the employee. The written award of the Arbitrator on the merits of any appeal adjudicated within the Arbitrator’s jurisdiction and authority shall be final and binding on the employee, the Association, and the County. 


Relevant Provisions of the Sheriff’s Duty Manual 


§3/020 Misconduct. A law enforcement officer is the most conspicuous representative of government, and to the majority of the people he/she is a symbol of stability and authority upon whom citizens can relay. An officer’s conduct is closely scrutinized, and when he/her actions are found to be excessive, unwarranted, or unjustified, he/she is criticized far more severely than comparable conduct of persons in other walks of life. Since the conduct of an officer, on or off duty, may reflect directly upon the Department, an officer must at all times conduct him/herself in a manner which does not bring discredit to him/herself, the Department or the County. 


§3/090 Conduct reflecting adversely on the department or employee. Members shall not conduct themselves, whether on or off-duty, in a manner that might be construed by an observer as indecent, lewd, or disorderly, or which is of such a nature that it causes discredit to the Department or to employees. They shall not be guilty of misconduct, neglect of duty, or acts tending to discredit the Department or themselves even though such conduct is not specifically set forth in this Manual. They shall be guilty of misconduct, neglect of duty, or acts tending to discredit the department or themselves even though such conduct is not specifically set forth in this manual. (Rev. 10/01). 


§3/090.10 Conduct while in uniform. While in uniform members shall use sound discretion in their conduct and activity. Any such conduct or activity likely to debase law enforcement, detract from Department image, or bring ridicule to the Department is unacceptable. 


§3/190 Public demeanor. Employees shall at all times be attentive to their duties and by their alertness and observation demonstrate their interest in their work. They shall act with dignity, and maintain a professional bearing. They shall not, while on duty, read newspapers, periodicals, or similar material in public view, except in the line of duty. They shall not exhibit a lazy disposition, or lounge about, or sleep while on duty, or place their feet on desks or other furniture in any, sheriff’s department office. 


§3/200 Personal business. Officers shall not shop, barter, or trade while on duty, nor devote any of their on-duty time to any activity other than that which relates directly to their work. Officers shall not enter places of amusement while on duty except for law enforcement purposes. 




The events leading to this arbitration began on March 22, 2003 during the Grievant’s scheduled work shift: 3:00 p.m. to 3:00 a.m. The work shift took place in the Burney area of Shasta County. During his work shift, a private citizen, a female in this case, accompanied the Grievant as a participant in the Sheriff’s Ride-Along-Program. (The woman had participated in the program on several prior occasions.) Without going into the details which were not in dispute, the conversation between the two became sexually charged and culminated in a brief sexual act. 


Six months later on September 1st, the Sheriff’s office learned of the incident. An Internal Affairs Investigation was ordered and when completed the report was given to Sheriff Jim Pope. On November 3, 2003, the Sheriff issued the Grievant a Notice of Charges in Support of Proposed Termination of Employment. Also on November 3, 2003, the Grievant was released from duty for two weeks with pay pending the outcome of the IA investigation.


During this time, the Grievant’s peace officer powers were suspended. 


Two weeks later, because the investigation had not yet been completed and because of language in the MOU, the Grievant was given an interim assignment with the Department’s Marijuana Eradication Team (MET). During the time of his interim assignment, the Grievant’s peace officer powers were still on suspension. (The Grievant had been working as a member of the MET team in the several months following the incident and at the time of his release from duty.) On December 11th, Sheriff Pope met with the Grievant and his attorney and privately with the Grievant. 


The termination notice came on December 23, 2003 when the Sheriff issued the Grievant a Notice for Termination of Employment. The reasons cited by the Sheriff included the sexual incident with the female participant in the Ride-Along-Program in a public place while on duty and in a marked Sheriff’s patrol vehicle. In his reasons for termination the Sheriff also referred to a written reprimand given to the Grievant three years prior on April 19, 2000. The reprimand was given to the Grievant for conducting personal business while on duty. In that instance, the Grievant, on several occasions, had telephoned and visited a female high school acquaintance while on duty. The Sheriff noted in the Notice of Termination that the two incidents were similar in nature “in that you were engaging in personal activities while on duty”, that he had been “forewarned that such conduct is inappropriate and would not be tolerated, and was to be avoided in the future”. The effective date of the termination was December 23, 2003. A grievance was filed and was processed to this Arbitration. 


Position of the County 


The County had cause to terminate the Grievant’s employment with the County. The County met the burden of showing that termination, under the circumstances, was the appropriate penalty. The Grievant admitted to engaging in an incident that was in sexual nature with the female participant in the Ride-Along Program. 


Peace officers are held to higher standard than other employees. His conduct was unbecoming of a peace officer and a breach of the trust placed in him as a peace officer. His conduct brought discredit to the County and to the Department and renders him unfit for duty. At the time of the incident, he was in uniform, on duty, and in a marked patrol vehicle. Because of his misconduct, he will no longer be able to work effectively with other law enforcement agencies nor with officers in the Department. 


 He had been given a written reprimand for misconduct three years prior that was similar in nature. In the reprimand, he was put on notice that that behavior was unacceptable and would not be tolerated. Termination was the appropriate penalty. The grievance should be denied in its entirety. 


Position of the Association 


The County did not have cause to terminate the Grievant’s employment with the County. The facts in the matter are not in dispute. The Grievant admitted to engaging in an act that was sexual in nature with the female participant in the Ride-Along Program. However, termination is a career ending penalty and was not the appropriate penalty in this instance. Mitigating circumstances dictated a lesser penalty. 


For the almost 10 years that the Grievant had served as a deputy with the Sheriff’s Department, he had an exemplary performance record that contained numerous citations acknowledging and recognizing his contributions to the County, the Sheriff’s Department, and the community. During that span of time, he received only one written reprimand and that was almost three years prior. The Grievant is human, he erred and he has learned from the incident and can, in the future, again be an asset to the County, the Department, and the community. The Grievance should be sustained. 




The Grievant voluntarily and freely admitted to the misconduct. The issue in this matter was therefore narrowed to the question of whether termination was the appropriate penalty. Before proceeding to the merits of the case, a few comments about the just cause standard may be helpful. Just cause is essentially a standard of reasonableness and fairness. Among other things, it requires that the penalty imposed fit the seriousness of the offense. It requires that consideration be given to the total circumstances of the case. The standard holds that if the penalty is beyond the range of reasonableness and unduly severe, the penalty should be modified. 


The discharge penalty is normally reserved for the very serious, the most egregious types of misconduct and for repeated misconduct. Discharge is the most extreme penalty the employer can impose since it irrevocably terminates an employee’s employment, cuts off his income, deprives him of all the seniority and other benefits he has accumulated in the course of his/her employment and often jeopardizes his chances of finding another job. 


Incorporated in the just cause standard is the concept of progressive or corrective discipline. With corrective discipline, the object of the penalty is to make the employees recognize their responsibilities so that they may become better employees in the future. Corrective discipline also assumes that the employer as well as the employee gains more by continuing to retain the offender in employment at least for a period of future testing, than cutting the employee from the employment rolls at the earliest possible moment. This is especially true where the employee has a work record of long and quality service the consideration of which plays a part in determining the appropriate penalty. Other mitigating factors frequently considered when determining the appropriateness of a penalty include the employee’s attitude, an admission of wrongdoing, an expression of remorse, a finding that it is unlikely the employee will repeat the misconduct, and an absence of serious harm from the employee’s conduct. 


The negotiated language of Article XV. A and B of the MOU clearly reflects the mutual intent of the parties. The language expresses the basis for disciplinary action. The language also recognizes three types of discipline and their purpose: Written Reprimands, Intermediate Disciplinary Action, and Severe Disciplinary Action. The mutual intent of the negotiated language is clear. Discipline, for all but the most serious offenses, will be imposed in gradually increasing levels and that the object of discipline is to correct rather than to punish. The language makes it clear that for most offenses employees are entitled to one or more warnings before some type of discipline and some type of discipline before discharge. 


The County’s contention was that the Grievant’s misconduct was similar to the misconduct for which he received a written reprimand three years prior. He was engaging in “personal business” while on duty. The County’s contention did not stand the test of reasonableness and nor was it supported by the evidence record. First, while he did conduct personal business while on duty there was no evidence the “business” was sexual in nature. Moreover, the Grievant’s Performance Appraisal Report for the period following receipt of the reprimand (July 2000 to July 2001) was one where he was given an overall performance rating of “Exceeds Standards”. 


Second, the termination notice noted that he had been forewarned in the prior reprimand that doing personal business while on duty was unacceptable and would not be tolerated in the future. The reprimand, however, failed to put him on notice as to the probable consequences for a repeat offense. In addition, even if the reprimand had put him on notice as to the probable consequences, a second offense of the same or similar conduct hardly comes close to requiring termination as the penalty in this instance. Added to this was testimony by the Sheriff that even without the prior reprimand, termination was the appropriate penalty in this instance. Even if the Sheriff had given weight to the reprimand at the time of his decision to terminate, according to the MOU some type of Intermediate Disciplinary Action would have been a more appropriate penalty. 


The County argued very forcefully that the Grievant’s conduct was such that he could no longer function effectively as a law enforcement officer. In support of this argument, Senior Deputy District Attorney, Daniel Flynn, testified that because of the Grievant’s poor judgment or lack of judgment he could no longer, in the future, rely on the truthfulness of investigative reports filed by the Grievant with his office nor could he rely on the Grievant to be a credible witness if subpoenaed as a witness in a criminal, felony case. Mr. Flynn also testified that the material related to the incident was, in his opinion and the opinion of the District Attorney, discoverable material and would have to be made available to the defense in future cases involving the Grievant. 


Mr. Flynn’s testimony was informative but not material to the issue of whether termination was the appropriate penalty. He was not involved in concluding that termination was the appropriate penalty. Mr. Flynn’s involvement in the matter came when a separate criminal investigation report was brought to him by Investigator Breshears. He testified that after reviewing Mr. Breshears’ report and after questioning the woman involved he concluded that, based on the facts, criminal charges were not warranted. It was clear from his testimony that after that decision, the DA’s office was not involved in the matter. 


The determination to terminate was made solely by the Sheriff after he reviewed the IA report. (It is my understanding that IA reports generated by the Sheriff’s Department, as a matter of policy, are confidential “in house”reports.) There was nothing in the evidence record showing that the Sheriff consulted with anyone in the DA’s office before making that determination. Moreover, Mr. Flynn testified that he had not and still has not reviewed the IA report. When asked if he was aware that the Notice to Terminate the Grievant contained no allegations or charges of dishonesty or untruthfulness, Mr. Flynn testified that he was not aware of that information. Mr. Flynn was also asked if he was aware that the Grievant, following the incident, had continued to be subpoenaed by the DA’s office to appear as a witness in court. He testified that he was not aware of that fact. The point here is that what Mr. Flynn testified to was after-the-fact information. And, in determining that termination was the appropriate penalty, the Sheriff did not consult with the DA’s office before arriving at his decision. 


The County also contended that the nature of the misconduct that led to his termination will make it impossible for him to work effectively with other law enforcement agencies and with other members of the Sheriff’s department. The Sheriff testified that the Grievant’s “indiscretion” would impact other law enforcement agencies. When asked what this assumption was based on, the Sheriff testified that it was based on “experience and rumors and talk, and there is, were a lot comments made”. The Sheriff also testified that he did not talk about the incident to law enforcement officers from other agencies. The evidence record did not support this contention. An employee’s employment should not be terminated on the basis of rumors, talk, and a lot of comments. 


The testimony of Special Agent David Burns of the Bureau of Land Management with whom the Grievant had worked on several marijuana eradication operations was that he could and would work with the Grievant if returned to service. Agent Burns acknowledged that he was aware of the incident that led to the termination decision but that his opinion of the Grievant had not changed because of the incident. He considered the Grievant to be a recognized leader by those who had worked with him, a thorough investigator and planner, and a person who always treated people with respect and humanity. On direct examination, Agent Burns testified that he would have no problem working with the Grievant whatsoever and that his opinion of him had not changed at all. Agent Burns also testified that what the Grievant did was wrong and deserving of discipline, but not termination. 


Added to the above was the testimony of Sgt. Tim McDonald of the Sheriff’s Department. Sgt. McDonald had been the Grievant’s supervisor in the several months prior to the IA investigation, a period of time when the Grievant was assigned to Sgt. McDonald Marijuana Eradication Team (MET). Sgt. McDonald’s testified that the Grievant was an excellent officer and that he worked well with other people and colleagues, that he was a team leader, and had taken leadership roles when necessary. In short, Sgt. McDonald testified that the Grievant had been a role model for other officers, was an outstanding officer and one of the most honest persons he knew and that he would trust him with “myself and my family”. He further testified that if returned to work, the Grievant would continue to be a role model. 


On cross-examination, Sgt. McDonald testified that, in his opinion, the incident involving the female participant in the Ride-Along Program was a moral mistake; but, we all make mistakes and that he, the Grievant, can still be a role model regardless of the incident. On Re-Direct, Sgt. McDonald testified that the Grievant is a good man, a good officer, that he has the capacity to learn from his mistakes, and would be a valuable officer if returned to the department. The County’s contention that the Grievant’s behavior in the incident made it impossible to work effectively with other officers in the department and with other law enforcement agencies was not supported by the evidence record. 


Another very significant mitigating factor was the Grievant’s work record. In the almost ten years he had been with the Sheriff’s Department his evaluations showed him to be an outstanding officer. In his first six yearly evaluations, his overall ratings were “meets expected standards”. In the last four evaluations, his overall ratings were “Exceeds Standards”. In addition, he had received, at the recommendation of the Sheriff, three “officer of the year” awards. His personnel file also contained numerous commendations from supervisors in the department, from people and organizations in the community, and from visitors to the County that he had assisted. It is the conclusion of the Arbitrator that the Grievant’s long period of service and the quality of his service were not accorded the due consideration they deserved in arriving at the decision to terminate his employment. 


In addition to the above was the Grievant’s attitude. He freely admitted to the misconduct, he made no attempt to lie or to cover-up his misconduct. In fact, he showed sincere embarrassment and remorse. He acknowledged that he had made a mistake in judgment and would do whatever it takes and would take any position just for the opportunity “to redeem myself”. 


For the reasons discussed in the foregoing, the decision of the Arbitrator is that the County did not have cause to terminate the Grievant. However, the County did have cause to discipline the Grievant with a penalty less than termination. The grievance is sustained in part. 


——   Award 


The grievance is sustained in part. The County did not have cause to terminate G__. However, the County did have cause to discipline G__ with a penalty less than termination. 


The Remedy 


The County is directed to immediately reinstate G__ to his position as a Shasta County Deputy Sheriff with all the rights and benefits that go with such employment and to make him whole for all lost income and benefits less other income earned. 


With respect to the question of an appropriate penalty less than termination, the matter, as requested by the parties, is remanded to the parties to come to a mutual resolution as to what shall be an appropriate penalty. 


The Arbitrator retains jurisdiction in this matter with respect to any dispute that may arise in implementing the remedy.