City of Bremerton
Bremerton Police Officers Guild
121 LA (BNA) 915
September 8, 2005
William F. Reeves, Arbitrator
The Bremerton Police Department (“Department” or “Employer”) provides law enforcement services in the City of Bremerton (“City”). The Bremerton Police Officers Guild (“Guild” or “Association”) represents all full-time and part time uniformed employees holding the rank of sergeant or below in the Department including M___ (“Grievant”), who is a Patrol Officer with the Department. The Department and Guild are parties to a collective bargaining agreement effective January 1, 2003—December 31, 2005 (“CBA”), which is applicable to the instant grievance.
Background and Facts
The Explorer Program
The Department has had an Explorer Program for a number of years, although it was neither emphasized nor very active prior to 2000. The Explorer Program had its roots with the Boy Scouts of America. The purpose of the law enforcement branch of the Explorer Program is to educate and involve youth in police operations, to interest them in possible law enforcement careers, and to build mutual understanding.
In 2000, Lt. Timothy Lopez was promoted to Operations Lieutenant and took over responsibility for the Explorer Program. Lt. Lopez is a strong advocate of the Explorer Program, and he set up training programs, activities, weekly meetings, and sought out advisors for the program. According to Lt. Lopez, the program grew from 8 or 9 participants to 25 participants under his tutelage. The Department's Explorer Program was open to youths and young adults from 14 years of age through the end of the calendar year of their 21st birthday.
Lt. Lopez also expanded the original Boy Scout concept by making the Department's Explorer Program a form of community outreach program specifically targeting at-risk youth from economically disadvantaged and single-parent families. The Explorer Program provides the youth with both classroom training in law enforcement, annual academy training, in-house training, annual competitions against other Explorer Programs, and the opportunity to ride with officers on patrol. Explorers have their own Manual, and they are instructed to obey the direction of all police officers. Parental permission is required for the young men and women to participate as Explorers in the program, and the Department commits to use their best efforts to keep the Explorers “safe.”
The Explorer Program is administered by Advisors, who are full-time Officers. One of the Advisors is designated as the Lead Advisor who reports directly to the Administrative Lieutenant and has program authority over the other Advisors. The Advisors participate in recruiting Explorer applicants, supervise Explorer meetings, accompany Explorers on trips and activities, and provide counseling and guidance to many of the Explorers.
Part of the Explorer Program, consists of ride-alongs wherein Explorers are assigned to ride with an Officer during his or her normal shift. The Explorer Program envisions Officers volunteering to participate in the ride-along program. The testimony reflects that reality was not consistent with that vision. While a number of Officers and Advisors voluntarily participated in the program, some Officers were simply assigned an Explorer to ride with them by the shift sergeant. This assignment was typically made on the basis of seniority, i.e., the less senior Officers were simply assigned an Explorer as a ride-along.
Explorer/Officer Non-Fraternization Policy
Before 2003, the Department did not have an Explorer/Officer non-fraternization policy. In late June 2003, Lt. Lopez's attention was directed to this lack of a non-fraternization policy by two separate items. Lt. Lopez received an e-mail containing an article on criminal sex abuse of teenagers by police officers in the “Cop-Scout” program, and an incident involving a deputy sheriff in a nearby jurisdiction who was indicted, or convicted, of sex with an underage Explorer (“K___ Incident”). Lt. Lopez began efforts to revise the Explorer Manual and the Standard Operating Procedures; and he embarked upon a program to immediately institute a non-fraternization policy between Explorers and Officers. According to Lt. Lopez's June 30, 2003 memorandum to the file, he met with the swing shift line up on June 25, 2003, the day shift line up on June 30, 2003, and the third shift lineup on July 2, 2003. Lt. Lopez's July 2 2003 entry to his memorandum states in part:
I advised that any innuendo of impropriety with an Explorer with (sic) an officer would be investigated vigorously. I also advised that no fraternization was allowed between an officer and Explorer outside department sponsored events unless cleared by myself or another command staff officer.
Many police officers' recollections do not comport with Lt. Lopez's memorandum and recollection. Officer Matt Thuring 1 surveyed twenty-four (24) patrol officers, of which only seven (7) remembered any Explorer-related training given at lineup, and only three (3) of those remembered the specific training identified by Lt. Lopez. Both Officer Thuring and Grievant contend they were never advised of an Explorer non-fraternization policy by Lt. Lopez. Officer Thuring and Grievant recall discussions relating to the K___ incident, and both Thuring and Grievant understood it would be inappropriate to fraternize with under-age Explorers. However, they did not understand Lt. Lopez to be issuing a blanket non-fraternization policy which included all Explorers.
The Explorer Manual
The Explorer Program has its own manual which is issued to, and receipt acknowledged by, every Explorer. The Explorer Manuals were not issued to Officers (except for Advisors), and the testimony at the hearing revealed very little knowledge of the Explorer Program by those Officers who were not involved in the program as an Advisor.2
Up until at least October 2003, the Explorer Manual in effect was the December 2001 revised manual, which did not address the subject of fraternization between Explorers and Officers. As part of Lt. Lopez's efforts to adopt an Explorer/Officer non-fraternization policy, a complete rewrite of the Explorer Manual was undertaken.
Included in the New Explorer Manual (Reviewed 10/2003) is the following:
Introduction to the Manual
This manual is an official publication of the Bremerton Police Department. It is issued with the authority of the Chief of Police and contains the policies, procedures, and regulations related to Law Enforcement Exploring Post #1911 of this department. These policies, procedures, and regulations are established to guide all Explorers in carrying out their duties and responsibilities.
Assignment of the Manual
All personnel assigned to the Explorer Unit will be provided a copy of this manual.
A. Each recipient will be provided certification that they have read and understand the policies and procedures set forth in the manual. ...
C. Revisions, supplements and page changes will be disseminated by control number to each person who possesses a manual.
Goals, objectives and special policies
3.7.1. Off duty contact and/or association between Officers and Explorers will only be permitted with the permission of the Post Commander and the parents of the Explorer and it will be for events or actions that are not unreasonable or could be construed as inappropriate in nature.
According to the Department's Explorer Manual Signature Form, the New Explorer Manual (Reviewed 10/2003), was first distributed in November 2003. The Commissioned Officers receiving and signing for the New Explorer's Manual were the Officers directly involved in the Explorer Program, e.g., Lt. Lopez, Lead Explorer Advisor Pierson, and Explorer Advisors Fatt.3 The majority of Explorers received their New Manuals on December 17, 2003.
The New Explorer Manual was not issued to the remainder of the commissioned Officers via the Department's Explorer Manual Signature Form. According to Lt. Lopez, on October 19, 2003 he distributed a copy of the New Explorer Manual in every officers' box. Grievant and Officers Thuring, Bernsten, Vertefeuille, and Grievant testified that they did not receive a copy of the New Explorer Manual. Officer Thuring contacted twenty-four Officers who denied receiving the New Explorer Manual. The New Explorer Manual was not distributed to the Guild for review.
The SOP Manual
The Department maintains a set of Standard Operating Procedures (“SOP”) in a Manual which is issued to every Officer. As with any policy and procedure manual, the Officers are expected to familiarize themselves with, and follow the procedures. Whenever the Department updates the Manual, Officers are issued a General Information Bulletin (“GIB”) which identifies changes to the SOP Manual, and includes revised pages for the Manual.
Officers acknowledge receipt of the GIB, and they must update their SOP Manuals.
On November 19, 2003, the Department issued GIB 03-11 which contained SOP Manual revisions effective December 1, 2003. The GIB notified Officers of a new section on the Explorer Program contained in Chapter 10. The new section provides:
10.4 Explorer Program
10.4.1. Explorer personnel are volunteer youth between the ages of 14 and 21. The program teaches and provides a basic knowledge of the law enforcement career and Department operations
10.4.2. Operations performed by the Bremerton Police Explorers are governed by the Explorer Manual.
10.4.3. The Explorer program is assigned to Support Services and is under the supervision of the Community Resource Unit.
10.4.4. Department personnel that have an interest in participating in this mentor program and are interested in taking on the roll of an advisor should submit their interest to the Support Services Lieutenant.
10.4.5. Personnel utilized as advisors, mentors or volunteer to work with the program are required to read, understand and comply with Department policy as outlined in the Explorer Manual.
10.4.6. Explorers are not to be used in assignments requiring commissioned police authority. Explorers are authorized to volunteer their services within the Department and in community services under the direction and supervision of law enforcement personnel.
10.4.7. Non-department personnel interested in working with the Explorer program will be screened and a background check will be completed.
Grievant has been a police officer with the Department since April 2003. Prior to his employment with the Department, Grievant was a police officer with the City of Seattle for three years. Before his career as a police officer, Grievant served in the U.S. Navy for approximately 12 years. At the time of the events herein, he was approximately 32 years of age.
At the time of the conduct in question, MH was a member of the Explorer Program. MH joined the Explorer Program in 2002 when she was 17 years old after being approached by two Bremerton Police Officers as part of the Department's Explorer “out-reach program.” MH lived in a low income area of Bremerton, West Park, and came from a single-parent family. She was a high school student. She lived with her mother and her mother's boyfriend. The relationship between the mother's boyfriend and her was not positive; however, MH had good grades and had not had any problems with the authorities.
MH subsequently attended Explorer meetings and became interested in the program. Ultimately, MH enrolled in the program with the permission of her mother. She attended academies, classroom training, in-house training, and competitions. She also went on ride-alongs with officers.
Generally, Officers and Explorer Advisors described MH as very talkative and very immature for her age. Officer Floyd May, an Explorer Advisor, described MH as outgoing, bubbly, friendly, silly, and naive. MH talked constantly and at a loud level inside the patrol car making it hard for the officers to use the radio. Officer May also thought MH's comments and responses showed a lack of common sense given her age level. Similar testimony was elicited from Officer/Advisor Daniel Fatt, Officer Jason Vertefeuille, Lt. Lopez, Officer Spencer Bernsten, and Officer/Adviser Karen Pierson. I had the opportunity to observe MH as she testified during the hearing. MH appeared and acted like someone between sixteen year and eighteen years old. (She is now 21). MH had some difficulty understanding complex questions, but appeared to have a good memory for dates and detail. All of the Advisors commented they spent additional time with MH providing life-skill counseling which gradually improved MH's conduct and increased her maturity level.
MH and Grievant first met at a crime scene in approximately May, 2003. Grievant was guarding the perimeter of a crime scene, and a group of Explorers arrived to help search the site. Later, as part of his duties as a low-seniority police officer, Grievant took Explorers on ride-alongs. During the first of these ride-alongs, Grievant was directed by his sergeant to participate in the ride-along program. At this time, Grievant was still on probation and at the bottom of the seniority list. MH rode along with Grievant four (4) to six (6) times between late August and October 2003. Grievant described his initial impression of MH (who was 19 at the time) as obviously over 18, with a maturity level consistent with a nineteen year-old.
After several ride-alongs together, Grievant “thought a relationship was possible.” 4 Toward the end of October, Grievant told MH she could no longer accompany him on ride-alongs because he wanted to avoid a conflict between their possible personal relationship and riding together as an Officer and Explorer.
MH and Grievant began “dating” in late October or early November. In January 2004, they had intercourse on three occasions; the first time shortly after MH's twentieth birthday. The “dates” consisted of drives around town, parking, and kissing. Grievant picked up MH a short distance from her home or at nearby Olympia College. The “dates” and sexual encounters were of a relatively short duration, and did not involve outings to restaurants, movies or other social events.
Both Grievant and MH kept their relationship secret. Grievant acknowledges telling MH to keep their relationship secret. Grievant testified that he kept the relationship secret because he did not want either his peers or his girlfriend to find out about his relationship with MH, and he thought MH could be disciplined by Explorer Advisor/Officer Pierson because Pierson was angry at Grievant.5 Grievant also stated MH wanted to keep the relationship secret from her mother because she was not on very good terms with her mother. MH and Grievant's sexual relationship ended in February 2004.
MH says she and Grievant never discussed any anti-fraternization policy, but she does recall Lopez telling her she was not to fraternize with police officers. MH testified that the relationship with Grievant was consensual and occurred off duty.
The Investigation, the charge and the discipline
In April, 2004, Department personnel discovered a series of e-mails between MH and Grievant which indicated the existence of a personal relationship between the Officer and Explorer. MH was confronted about her relationship with Grievant and admitted the relationship. On April 12, 2004 6, MH provided a written statement to the Department, and was interviewed again on April 19, 2004 as a part of the Department's internal investigation. MH was terminated from the Explorer Program because of the Explorer's non-fraternization policy. The Department undertook an in-depth internal investigation which included interviews with Officer Meade on the May 13, 2004 and June 14, 2004.
On August 2, 2004, the Department delivered a Notice of Charge to Grievant which gave notice of a proposed ten-day suspension without pay. A pre-disciplinary hearing was held on August 9, 2004; the hearing was attended by the Employee and the Guild President, Matt Thuring. The hearing was conducted by Chief Forbes. On August 13, 2004, Chief Forbes issued a Notice of Discipline, suspending the Employee for ten (10) days without pay. Subsequently, at the request of the Guild President, the Bremerton Police Chief permitted Officer Meade to use five (5) days of vacation as a part of the ten (10) days' suspension.
On August 16, 2004, the Guild grieved the suspension seeking to set aside the just cause finding and the imposition of ten (10) days' suspension. The grievance was processed in a timely fashion, and ultimately the matter was appealed to arbitration in accordance with the CBA.
The parties stipulated to the following issue statement:
Did Employer have just cause to suspend Grievant for ten days?
If not, what is the proper remedy?
The Department contends it proved Grievant was guilty of wrongdoing because Grievant: 1) violated a direction by command staff not to fraternize with Explorers; and 2) violated the specific policies and procedures contained the New Explorer Manual as referred to in the SOP Manual.
In response to the Guild's arguments, the Department contends: 1) The 10-day suspension was a reasonable and appropriate discipline because the Department considered all relevant factors; 2) Grievant was not disparately treated; and 3) Grievant was afforded due process.
Guild contends the Department failed to prove its case because Employer did not have “just cause” to discipline Grievant. Specifically, Guild contends:
1) Grievant was not given reasonable notice of the charges he faced for violating the rules in question;
2) Grievant was not given reasonable notice of the rule to be followed;
3) Grievant was not given reasonable notice of the penalty he faced for violating the rules in question;
4) The Department did not consistently enforce the stated rules with regard to fraternization situations;
5) The Department's rules at issue were interpreted unreasonably or unlawfully, and the interpretations did not bear a rational relationship to the Department's operations;
6) The Department did not conduct a thorough and fair investigation;
7) The Department did not comply with contractual and legal due process;
8) The suspension must be reversed because Grievant did not violate the identified rules;
9) The penalty of discharge (sic) must be reversed because Grievant was not treated the same as other similarly situated employees;
10) The penalty of discharge (sic) must be reversed because the Department failed to impose proper progressive discipline;
11) The Department has a limited interest in the Explorer-related rules;
12) The degree of discipline administered by the Department is not reasonably related to the nature of the offense, Grievant's employment record, and his service in patrol;
13) The discipline imposed was excessive in light of other mitigating factors; and
14) The Department contributed to the punished conduct through its own actions. Additionally, the Guild contends the Department's unilateral application of the Explorer Manual to Officers violated the CBA.
The facts surrounding Grievant's off-duty contact with MH are not materially in dispute. There is no question Grievant's and MH's conduct amounted to fraternization. The primary issue in this grievance relates to whether Employer, as required by CBA 17.1, had just cause to discipline Grievant for that conduct.
I listened to sworn testimony from several Officers, and reviewed interviews and reports of the internal affairs investigation. As one would expect, there are variations in the testimony. There are many reasons for variations in testimony including the passage of time, and the differing capabilities to perceive and recollect. Thus, the fact that I choose to accept the testimony of one officer over that of another officer, does not necessarily mean I am questioning the credibility of any officer. I am merely accepting one version of the facts which I find is more consistent with all of the facts and evidence presented.
Burden and Quantum of Proof
The parties do not dispute the Employer's obligation to prove its case by establishing wrongdoing. Regarding the quantum of proof, Employer argues for the application of a “preponderance of the evidence” standard while the Guild advocates the adoption of a “clear, cogent and convincing” standard. The “normal” quantum of proof in arbitration, as in most civil actions, is the preponderance of the evidence standard. In situations where proof of the alleged offense would seriously damage the employee outside the employment relationship (e.g., an allegation of illegal or immoral conduct), a higher standard of proof is often required. I find no reason to deviate from the preponderance of the evidence standard in the instant grievance. I find there is no allegation of illegal or immoral conduct. Furthermore, Grievant's conduct is not an issue—he has admitted a sexual liaison with MH, which certainly constitutes fraternization.
“Just cause” is not an easily defined concept, and no singular formulation of the just cause concept has received exclusive acceptance amongst arbitrators. An oft quoted formula for performing a just cause analysis is the “Seven Tests” promoted by Arbitrator Carroll Daugherty in 1964. In Daugherty's view, if the answer to any of his seven questions is no, then just cause does not exist for discipline. Daugherty's questions are:
1. Did the employer give to the employee forewarning or foreknowledge of the possible or probable consequences of the employee's disciplinary conduct?
2. Was the Employer's rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the Employer's business, (b) the performance that the Employer might properly expect of the employee?
3. Did the Employer, before administering the discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?
4. Was the Employer's investigation conducted fairly and objectively?
5. At the investigation, did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?
6. Has the Employer applied its rules, orders and penalties even-handedly and without discrimination to all employees?
7. Was the degree of discipline administered by the Employer in a particular case reasonably related to (a) the seriousness of the employee's proven offense, and (b) the record of the employee in his service with the Employer? 7
More recently, Arbitrators Abrams and Nolan have advocated a “systematic theory” of just cause by exploring the fundamental understanding of the employment relationship as affected by the collective bargaining agreement. See Abrams & Nolan, Toward a Theory of Just Cause in Employee Discipline Cases, 1985 Duke L.J. 594 (1985), See also Brand, Discipline and Discharge in Arbitration (1998).
Moreover, a timeless definition of just cause first provided in 1947 by Arbitrator Harry Platt continues to be a favorite among scholars. Arbitrator Pratt noted:
It is ordinarily the function of an Arbitrator in interpreting a contact provision which requires [just cause] ... not only to determine whether the employee involved is guilty of wrongdoing.... but also to safeguard the interests of the discharged employee by making reasonably sure that the causes for discharge were just and equitable and such as would appeal to reasonable and fair-minded persons as warranting discharge. To be sure, no standards exist to aid an Arbitrator in finding a conclusive answer to such a question and, therefore, perhaps the best he can do is to decide what a reasonable man, mindful of the habits and customs of industrial life and of the standard of justice and fair dealing prevalent in the community, ought to have done under similar circumstances and in that light to decide whether the conduct of the discharged employee is defensible and the disciplinary penalty just.8
No matter what test or standard is used, the essence of the just cause principle is the requirement that an employer must have some demonstrable reason for imposing discipline, e.g., the reason must concern the employee's ability, work performance, conduct, or employer's legitimate business needs. Furthermore, the just cause principle entitles employees to due process, equal protection, and individualized consideration of specific mitigating and aggravating factors. Finally, the employer's chosen level of discipline itself must be “just.”
Notice of Rule
The instant grievance involves Grievant's conduct. It is unfair to punish an employee for conduct the employee has no reason to know would be unacceptable. In other words, an employer must announce the rules it expects its employees to follow. The Department contends it instituted an Explorer/Officer non-fraternization policy both verbally and in writing. Obviously a written policy provides a clearer directive to an employee. Accordingly, I will examine that policy first.
The Department's Written Policy
Policies are usually in writing because the written word is a more reliable and verifiable form of communication than a verbal directive. The parties have agreed upon on a written method of communicating policies to Guild members. CBA Article 16.4 states:
The Police Department Policy Manual will be distributed to all bargaining unit employees. The employee will acknowledge receipt of and will become knowledgeable of the Manual's or Policy's contents. All revisions to the Manual or Policy will be provided to employees for inclusion in the Manual. Further the Department will inform the Guild of policy revisions prior to enactment.
Thus, the Department agrees to communicate its policies through the SOP Manual, and Guild members agree to become knowledgeable of the SOP Manual's content. Furthermore, the parties agreed on a method of verifying delivery and receipt of SOP Manual revisions: “The Department will inform the Guild of policy revisions prior to enactment.”
I find the Department did not abide by the contract when it distributed the new Explorer/Officer non-fraternization policy contained in Explorer Manual Section 3.7. I base my finding on the following. First, the Department did not distribute the non-fraternization policy to the Guild before it “enacted” the policy. On direct examination, Lt. Lopez testified that he sent the Explorer Manual to the Guild for review. On cross examination, Lt. Lopez acknowledged he thought others in the Department had sent the Explorer Manual to the Guild for review. Chief Forbes, in his August 31, 2004 e-mail to Matt Thuring acknowledged the Department did not distribute the Explorer Manual to the Union for review and comment. According to Chief Forbes: “The Guild was not asked to review changes to the Explorer Manual itself, which governs this youth oriented program....”
Second, the non-fraternization policy is not contained in the Manual. It is difficult to conceive of a more obscure method of distributing the Department's written prohibition of fraternization between Officers and Explorers than the method used by the Department. Instead of inserting a non-fraternization policy directly in the SOP Manual, the Department indirectly refers to, and arguably incorporates, the entire Explorer Manual.9 However, the Department continued its efforts to obfuscate the non-fraternization policy. SOP 10.4.5 could have stated: “All Officers must read, understand and comply with Department policy as outlined in the Explorer Manual,” Instead, SOP 10.4.5 only applies to: “Personnel utilized as advisors, mentors or [who] volunteer to work with the program.” The Department then argues “all officers” are “mentors.” If all officers are mentors, then why not simply state “All Officers.”
Furthermore, SOP 10.4.5 does not specify which version of the Explorer Manual must be examined. Unlike the SOP Manual, the Explorer Manual was: 1) Not assigned to Officers; and 2) GIBs were not issued when the Explorer Manual was revised or updated. Thus, if an Officer possessed an Explorer Manual, he or she would not know if the Explorer Manual was current, and would not be notified of changes to the Explorer Manual.
In summary, the Department expected an Officer upon receipt of GIB 03-11 to: 1) Review SOP Manual Chapter 10; 2) Assume or conclude that all Officers are “Mentors”and, therefore, the officer must review and comprehend the Explorer Manual; 3) Find a copy of the Explorer Manual; 4) Determine that the copy of the Explorer Manual is current; 4) Review the 34-page Explorer Manual; 5) Determine that Section 3.7 (non-fraternization policy) of the Explorer Manual pertains to Officer-conduct and not Explorer-conduct; and 6) obey the non-fraternization policy.
The communication of policy should not be a scavenger hunt. A simpler and more direct approach would have been to place the non-fraternization policy directly in the SOP Manual. This direct approach would have complied with the CBA and provided verifiable notice of the policy to all the Officers.
Because I have found the Department failed to follow the CBA in adopting the non-fraternization policy contained in Section 3.7 of the Explorer Manual, I find the written non-fraternization language contained in Section 3.7 of the Explorer Manual did not become a Department policy or procedure applicable to Officers including Grievant.
The Department's Unwritten and Unpublished Rules (Verbal Orders or Directives)
Even though the Department erred in its distribution and communication of the written Explorer/Officer non-fraternization policy, it does not necessarily follow that fraternization between Explorers and Officers was permitted. It is not possible to specifically anticipate and prohibit all unacceptable conduct in writing. Thus, an employer can prohibit conduct through verbal orders or directives. Furthermore, some conduct is so clearly harmful to the workplace that a reasonable employee would recognize it as prohibited.
The Department's sudden concern over the lack of a written Explorer/Officer non-fraternization policy 10 was addressed by Lt. Lopez's verbal directive pending the Department's issuance of a written policy. There are widespread differences regarding the message conveyed by Lt. Lopez. However, there is no question that Lt. Lopez discussed some form of an Officer/Explorer non-fraternization policy at several “line-ups.”
On June 25, 2003, Lieutenant Lopez met with the swing shift lineup and discussed the K___ matter and the CBS internet article.11 According to Lt. Lopez, he: 1) advised the Officers at lineup that all of the youth in the Explorer Program were the responsibility of the Department as a whole, and it was their obligation to keep the Explorers safe; 2) directed that there was to be no fraternization between any Officers and any Explorers outside of Department-sponsored events, unless previously cleared by himself or another command staff officer; and 3) said he would discipline, to the fullest extent possible, any Officer who did fraternize with an Explorer.
Lt. Lopez's message was understood by at least two Officers. Officer Vertefeuille and Officer Davis approached Lieutenant Lopez to advise of their outside contacts with two Explorers. Officer Vertefeuille advised Lt. Lopez an Explorer provided babysitting services for his child. Lt. Lopez approved this contact, so long as it was also authorized by the Explorer's parents. Lieutenant Lopez testified that he confirmed the appropriateness of this contact with the Explorer's parents. Officer Davis advised Lt. Lopez an Explorer was his daughter's friend, which might bring Officer Davis in contact with the Explorer. This was also approved by Lt. Lopez, subject to parental approval.
Lieutenant Lopez also met with the day shift lineup on June 30, 2003. According to Lt. Lopez he made the same presentation, and gave the same directive, he had given at the swing shift lineup on June 25, 2003. Following this presentation, Officer Tincher approached Lieutenant Lopez to advise that he was involved in a paintball group with four Explorers.
Finally, on July 2, 2003, Lt. Lopez met with the third shift lineup and made the same presentation. Grievant attended this third shift lineup. Officer Pierson, who also attended this lineup, confirmed Lt. Lopez's discussion of the K___ incident and the CBS articles, and Lt. Lopez's directive prohibiting fraternization between Explorers and Officers. Officer Fatt, who is also an Explorer Advisor, also attended the meeting. Officer Fatt recalled a discussion about the fraternization issue, but he was not paying close attention because he had heard the same briefing from Lt. Lopez immediately before the lineup when Lt. Lopez had met with the Explorer Advisors and discussed the new non-fraternization policy. Pierson was also present at this Advisor meeting.
The evidence suggests Lt. Lopez's discussion and directive was remembered by those Officers who were either involved in the Explorer Program as Advisors, or who had off-duty contacts with Explorers. The remainder of the Officers apparently do not remember the directive. At the most, the majority of Officers remember a discussion of the K___ case, and recall Lt. Lopez's comments as “general information” and not as an order or directive.12 Grievant recalls Lt. Lopez discussing the K___ incident, and understood it would be inappropriate to fraternize with under-age Explorers. However, Grievant stated he did not understand Lt. Lopez to be issuing a blanket non-fraternization policy which included all Explorers.
Based on the evidence before me, I find Lt. Lopez directed Officers under his command, including Grievant, not to fraternize with Explorers apparently did not pay close attention to this directive—perhaps because the Officers did not have any contact with Explorers in their off-duty hours. Even though the non-fraternization directive was not communicated to all Officers, and even though there was no effort by the Department to put the directive in writing, I find Lt. Lopez's directive was communicated to Grievant. Lt. Lopez's contemporaneous notes indicate he briefed the third shift lineup on July 2, 2003. The lineup briefing and directive was recalled and described by Officer Pierson during her testimony. The sign-in sheet shows Grievant was present during the lineup. I find a police officer has a responsibility to pay attention during lineups and other briefings—particularly when the lineup is conducted by a command officer. Lt. Lopez saw fit to discuss off-duty fraternization between Explorers and Officers, and issued a directive prohibiting such off-duty fraternization. Grievant had a responsibility to understand the scope of that directive, and obey it.
Reasonableness of Rule
Absent any contractual constraints, employers generally may implement reasonable work rules as long as they comply with the law and do not contradict the CBA. In this case, the conduct sought to be prohibited by the employer's work rule involves off-duty conduct, i.e., no fraternization between Officers and Explorers even when off duty. In such a case, an employer must establish a nexus, or demonstrable and harmful connection, between the conduct employer wants to regulate and the employer's legitimate business interests. One recognized legitimate business interest is when the conduct would jeopardize the employer's operations by creating adverse publicity that harms the organization's public image.
In the instant case, I find the Department established that unauthorized contact between Explorers and Officers harm the Department's public image, and the de minimus impact on an employees right to privacy and freedom of association. Much of this finding is based on common sense. The Explorer Program is a “young adult” program administered by the Department. Explorers are not co-workers, they are young adult volunteers who are there to be guided, and tutored by the Officers in the Department. It is incomprehensible that the Guild should argue that the Department cannot prohibit fraternization between Officers and these young adult volunteers. Even the appearance of an inappropriate encounter between an underage Explorer and an Officer could damage the viability of the Explorer Program, and subject the City to litigation expenses.
While the potential harm to the Department's public image is less in the case of Explorers past the age of consent 13, sexual relations between Officers and Explorers present a substantial potential for harm to the City's reputation and the Explorer Program. In the instant case, the Department did not limit fraternization to underage Explorers. The non-fraternization policy applies to all Explorers irrespective of their age. Of course, the oldest an Explorer can be is 21. What would happen if an Explorer above the age of consent alleged a sexual encounter with an officer was not consensual? Such an allegation would not be the same as the allegation by a citizen against an officer. In such a hypothetical situation, the Explorer's allegation would affect the viability of the entire Explorer Program, and subject the Department to public scrutiny for not prohibiting off-duty contact between Officers and members of its Explorer Program.
The Department provides further rationale for its policy in Exhibit 3, Page 6, wherein it states:
The purpose of this standard is so that an Explorer is not put into a compromising situation in which he/she feels they must compromise their position and comply with the inappropriate request of a Police Officer, who has greater influence and authority.
This rationale is similar to the public policy expressed in RCW 9A.44.093.(1)(b) wherein the State of Washington has made it a criminal offense for a school employee to engage in sexual intercourse with a student, even if the student is more than 16 (or more than 18) years of age, so long as the employee is more than 60 months older than the student.
Finally, regarding the Guild's contentions about the impact of the non-fraternization policy on the employees' right to privacy, or freedom of association, are without merit. I find any such impact is de minimus. If an Officer and an Explorer above the age of consent want to have a personal relationship, the Explorer can quit the Explorer Program and join an Explorer Program in another nearby community. The non-fraternization policy only applies to Officers and Explorers in the Department whose personal relationship may be influenced by their mentor-protege roles.
Consistency of Enforcement
Proper discipline requires that rules be enforced evenhandedly and without discrimination. The Guild contends the Department did not consistently enforce its non-fraternization rule. The Guild bases its argument on a lack of Department-imposed discipline for other cases involving either sexual harassment, Officer/Officer affairs, and other examples which are not comparable with the alleged offense in the instant grievance.
I find the Guild's argument is without merit. The Guild acknowledges the Department does not prohibit fraternization between Officers and Cadets, Reserves, or even other Officers. Thus, the Guild has failed to establish the Department inconsistently enforced the same rule as involved in the instant grievance. None of the examples cited by the Guild involved an Officer and an Explorer, and there was no evidence that an Officer had ignored or disobeyed a command officer's directive.
Procedural Due Process
In disciplining its employees, an employer must do so in a manner that is not unreasonable, arbitrary, capricious or discriminatory. The Guild contends Employer failed to provide due process in two areas: Reasonable notice of the charges; and a fair investigation.
A meaningful investigation assures both procedural and substantive due process. Substantively, an employer's discipline of an employee lacks just cause if the employer does not bother to verify that cause for the discipline in fact exists. Procedurally, due process protects an employee from the employer taking peremptory action without giving the employee the chance to know his or her accusers and the accusations.
In the instant grievance, I find the Department conducted a meaningful investigation. The Department advised Grievant he was the subject of an internal investigation on April 13, 2004. Lt. Burchett concluded the internal investigation on June 18, 2004. The Guild contends the investigator was biased and the investigation was tainted, but the Guild offers no real evidence of that bias.
I note Lt. Burchett's IA summary affirms many of Grievant's contentions. Lt. Burchett acknowledges: 1) Grievant's on-duty cell phone use did not raise a level of concern; 2) Grievant no longer allowed MH to ride with him on duty once they began a personal relationship; 3) the SOP incorporating the Explorer Manual was not clear; and 4) the verbal orders involving major policy changes were not followed up with written rules and directives.
However, the mere fact the investigator chooses to believe one set of facts over another, or reaches a different conclusion over the meaning of those facts, does not make the investigation biased. Furthermore, the facts surrounding the Grievant's conduct are not disputed. The facts in dispute relate to the nature and extent of Lt. Lopez's verbal directive regarding the non-fraternization policy; the manner of implementing that written policy, and the right of the City to implement such a policy. In summary, I find the Department established a prima facie showing of a meaningful and fair investigation; and I find the Guild has not produced any evidence to the contrary.
Notice of Charges
An employer must provide an employee facing discipline precise information about the charges the employee faces. On August 2, 2004, the Department provided Grievant with an eight-page document entitled Notice of Charge which: 1) describes Grievant's conduct vis a vis the totality of events surrounding the relationship between Grievant and MH; and 2) lists the various provisions in the Civil Service Code, SOPs, and Explorer Manual which the Department alleges the Grievant's conduct violated. The Notice of Charges does not detail which aspects of Grievant's conduct violated a particular SOP or Civil Service Code.
I find the Department provided sufficient information of the charges facing Grievant. As stated repeatedly, the facts of Grievant's conduct were not in dispute. The parties clearly disagree on whether the conduct specified constitutes an offense, but I find Employer provided Grievant with sufficient information to allow Grievant to understand the charges against him and formulate a defense.
After considering all of the evidence, I find Grievant ignored or disobeyed a directive from Lt. Lopez prohibiting off-duty fraternization between Officers and Explorers. I further find Grievant's conduct violate SOP Chapter 38; Rule 17 wherein Officers are charged with making an affirmative, consistent effort to observe and comply with directives. This finding is made despite the Department's abysmally poor job of communicating the non-fraternization directive to the Officers as a whole. When more than one-half of the Officers do not recall a non-fraternization directive, there is a serious communication problem. The Department made no effort to confirm the directive in writing other than to include it in the Explorer Manual (not the SOP Manual) five months later. The shift-sergeants neither reconveyed Lt. Lopez's directive to Officers absent from the lineup, nor repeated the non-fraternization directive at any other lineups.
I found previously Grievant was present at the July 2, 2003 line up when Lt. Lopez directed Officers under his command not to fraternize with Explorers except at Department-sponsored events. Grievant has a responsibility to pay attention to directives issued by command officers at lineup. Either Grievant didn't pay attention, forgot the directive, or ignored a directive he knew or should have known.
The concept of “just cause” requires reasonable proportionality between the offense and the penalty. The seriousness of the offense will vary depending on such factors as: the nature and consequences of the employee's offense (the magnitude of the actual or potential harm), the degree of knowledge the employee had about the rules and penalties (the clarity or absence of rules); the frequency of the offense; the impact of the degree of punishment on other employees; and the practices of the parties in similar cases. Furthermore, the discipline for all but the most serious offenses must be imposed in gradually increasing levels, i.e., progressive discipline. The primary objective is to correct rather than to punish. Thus, for most offenses, employers should use one or more warnings before suspensions, and suspensions before discharge. Finally, the penalty should take into account any mitigating or aggravating factors, such as: the employee's past employment record.
While I have found Grievant violated the non-fraternization directive given by Lt. Lopez, my other findings differ significantly from the conclusions reached by Chief Forbes. The most significant difference is my finding that the Department never properly implemented a written non-fraternization policy and included it in the SOP Manual. The discipline meted out by Chief Forbes was based in part on his finding that Grievant had violated the Department's written policy and procedure. Thus, I must reevaluate the appropriateness of the discipline based on my findings which include the violation of only a verbal directive—given only once to Grievant, and not confirmed in writing. Furthermore, the non-fraternization directive was not widely dispersed among the Officers—a majority of the Officers do not recall the directive being given to them. Finally, at the time the verbal directive was issued, Grievant and MH were neither engaged in, nor contemplating, any personal relationship.14
I find the Department did not communicate this directive/policy in a manner consistent with the seriousness which it attributes to this offense. By choosing to distribute the non-fraternization directive/policy infrequently and only orally, the Department effectively diminished the seriousness of the directive/policy, and lessened the probability that the same message would be received and clearly understood by all Officers. The evidence shows numerous Officers did not even recall non-fraternization training occurring at lineup. Of those few recalling the training, most thought the only prohibition was against fraternizing with Explorers who were minors. Given the directive's lack of importance as evidenced by the Department's method of communicating the directive, and considering principles of progressive discipline, I find it is not “just” to suspend Grievant for his conduct.
When considering the totality of Grievant's conduct, and mitigating factors I find the following. In addition to violating Lt. Lopez's directive, Grievant acknowledged he encouraged MH to keep their relationship a secret. Grievant went so far as to suggest to MH that she deny their relationship if questioned by members of the Department. Grievant had reasons for keeping the relationship secret quite apart from any actual knowledge of the non-fraternization policy. However, those reasons do not justify encouraging an Explorer not to disclose the truth to her supervisors. Integrity is one of the keystones to being a police officer. There is no justification for Grievant counseling MH as he did. Furthermore, Grievant and the Guild continue to fail to recognize the potential for overreaching that exists in Officer/Explorer relationships. Finally, I find no mitigating circumstances from Grievant's employment record. Grievant was employed by the Department for less than one year at the time the incident was initially investigated. Based on the above considerations, I find a level of discipline above a verbal warning is appropriate. I conclude an appropriate level of discipline is a written reprimand.
1. For the reasons stated herein, the grievance GRANTED in part, and DENIED in part.
2. Employer had just cause to discipline Grievant for violating a directive of a commanding officer which prohibited fraternization between Officers and Explorers. Grievant's conduct falls within the parameters of SOP Chapter 38, Rule 17.
3. The ten-day suspension of Grievant was inappropriate and excessive in light of the manner in which the non-fraternization directive was communicated.
4. Grievant's discipline is hereby modified to a written reprimand which is a “just”disciplinary action when considering the totality of Grievant's conduct and the lack of mitigating circumstances.
5. Grievant shall be made whole for any back pay and other loss of benefits, and his disciplinary record modified in accordance with this award.
6. Implicit in this award is the finding that Employer has not effectively adopted a written Officer/Explorer non-fraternization policy into its SOP Manual.
7. As agreed by the parties, I retain jurisdiction for a period of 60-days to resolve any issues in implementing this award.
8. In accordance with CBA Article 19.8 the parties shall each pay an equal portion of my fees and expenses.
1 Officer Thuring is also Guild President.
2 Officer Daniel Fatt has been an Explorer advisor for three years. He testified he was not familiar with Explorer Program prior to becoming an advisor. Thuring has been a police officer for 12 years. He has never had Explorer ride with him.
3 One notable exception is the Explorer Manual assigned to Grievant in May 2004. After the IA investigation began, Grievant sought out a copy of the New Explorer Manual. He was assigned a numbered copy.
4 According to Grievant, MH made overtures toward him first. MH started calling and e-mailing Grievant. She then let Grievant know she was interested in him sexually by saying she found him attractive and making up a sexually explicit song while they on ride-along together. MH does not recall saying anything to initially stimulate Grievant's interest. According to MH, Grievant told her he found her physically attractive and then said: “How do you feel about that?”MH told Grievant she “felt the same way.”
5 According to Grievant, he had rejected advances made by Pierson. Pierson denies making any such advances. In his IA interview, Grievant does not mention his concern of Pierson or from his peers.
6 On April 12, 2004 when the Department first learned of the off-duty relationship between Grievant and MH, Grievant was still a probationary employee and subject to discharge “at the sole discretion of the City ... without recourse to the grievance procedure.”
7 Koven & Smith, Just Cause: The Seven Tests (1997).
8 Riley Stoker Corp., 7 LA (BNA) 764 (Platt, 1947).
9 The SOP Manual was revised effective December 1, 2003 by GIB 03-11. As part of the December 1, 2003 revision, Officers were advised in SOP 10.4.5: “Personnel utilized as advisors, mentors or volunteer to work with the program are required to read, understand and comply with Department policy as outlined in the Explorer Manual.”
10 Two separate incidents made the Department aware of its lack of an Officer/Explorer non-fraternization policy. On June 25, 2003, Officer and Explorer Advisor, Wendy Davis, provided then-Lieutenant Lopez with an internet article prepared by CBS regarding police officers and firefighters sexually abusing Explorers. During the same time, Kitsap County Deputy K___, was being prosecuted for a sexually abusing a former cadet.
11 Lt. Lopez testified he handed out Xerox copies of the CBS and K___ articles at these briefings. Lt. Lopez's recollection is not corroborated by anyone. Those officers that remember the briefings recall a copy of the articles being available but not distributed.
12 As noted earlier, Guild President Officer Matt Thuring surveyed 24 patrol officers, of which only seven (7) remembered any explorer related training given at lineup, and only three (3) of those remembered the specific training identified by Lt. Lopez.
13 The Age of Consent in Washington is 16. However, it is a crime for a person at least 60-months older than a person between 16 and 18 years old to have sexual intercourse with the younger person if ALL of the following conditions exist: 1) The older person is in a “significant” relationship with the younger person; 2) The older person is in a position within that relationship; and 3) The older person uses that supervisory position in order to have sexual intercourse with the younger person. See RCW 9A.44.093.
14 This is significant to the extent it is consistent with Grievant not paying close attention during Lt. Lopez's lineup briefing on July 2, 2003 and, therefore, not remembering Lt. Lopez's directive—instead of Grievant directly disobeying that directive. On July 2, 2003, Grievant was neither engaged in, nor contemplating, any off-duty personal relationship with an Explorer. The evidence shows that although MH and Grievant first met in May 2003, they did not associate with each other until MH was assigned to Grievant as a ride-along Explorer in August 2003. Grievant and MH did not form a personal off-duty relationship until late October 2003.
Relevant Contract Provisions and Directives
Collective Bargaining Agreement
Article 17 Management Rights
17.1 Any and all rights concerned with the management and operation of the Police Department are exclusively that of the City unless otherwise provided by the terms of this Agreement. The City has the right, among other actions, to adopt rules for the operation of the Department and conduct of the employees, to discipline, suspend or discharge employees for just cause, to assign work and determine duties of employees, to determine number of personnel to be assigned duty at any time, to determine and introduce new work methods or facilities to increase productivity for operation of the Department and to perform all of the functions not otherwise expressly limited by this Agreement; provided, nothing herein shall be construed as a waiver of collective bargaining rights conferred on the parties by RCW.
Article 16 Personnel Practices
16.1.1 Probationary Employee: All employees serving a twelve (12) month period commencing upon the initial due date of hire as a permanent employee during which the employee may be discharged at the sole discretion of the City, consistent with applicable Civil Service Rules and Regulations (Section 12-Probation) and without recourse to the grievance procedure.
Article 19 Grievance Procedure
19.7 Powers and Duties of Arbitrator: It shall be the duty of the arbitrator to conduct a hearing on the issue or issues submitted by the parties for decision. The hearing shall be kept informal and private. The arbitrator shall interpret the provisions of this Agreement as they apply to the issue or issues submitted for decision and shall not add to, subtract from, nor in any way otherwise alter or recommend the alteration of the terms and conditions of the Agreement in deciding the matter. Within thirty (30) days of the close of the hearing or submission of briefs, whichever occurs later, the arbitrator shall render a written decision, which shall be binding upon the parties. The arbitrator shall conduct the arbitration hearing in conformance with the Voluntary Rules for Labor Arbitration of the American Arbitration Guild (sic).
Civil Service Code 19.05
The following are declared to illustrate good causes for discharge and other forms of discipline; discharge and discipline may be made for any other good cause:
(A) Incompetency, inefficiency, inattention to duty, dereliction of duty, or violation of Department Rules.
(B) Dishonesty, intemperance, immoral conduct, insubordination, discourteous treatment of the public or a fellow employee, any other act of omission or any other willful failure on the part of the employee to properly conduct themselves. * * *
(H) Willful or intentional violation of any lawful and reasonable regulation, order or direction made or given by a superior officer or supervisor. * * *
(Q) Conduct unbecoming an employee of the City.
Bremerton Police Department Manual
Chapter 38, Rule 16: Insubordination
Members shall willfully observe and obey the lawful verbal and written rules, duties, policies, procedures and practices of this organization. They also shall subordinate their personal preferences and work priorities to the lawful verbal and written rules, duties, policies, procedures and practices of this agency as well as to the lawful orders and directives of supervisors and superior command personnel of this organization. Members shall willfully perform all lawful duties and tasks assigned by supervisors and superior-ranked personnel, direct, tacit or constructive refusal to do so is insubordination.
Chapter 38, Rule 17: Knowing, Observing and Obeying all Directives, Rules, Policies, Procedures
Members shall make an affirmative, consistent effort to observe and comply with the directives, rules, policies, procedures and traditions established for the effective, efficient and safe operations of this organization. This standard applies to policies, procedures and practices that are written as well as those established by past patterns or practices.
Affirmative effort as the term is used here means to self initiate acceptable ways to comply. In other words, look for ways to comply with the standard and do not look for the exceptions to the standard.