Holding: “Where there is just cause for discipline, it is not the Arbitrator's role to impose his own standard of discipline in place of that of the disciplining authority unless the Arbitrator concludes that the discipline imposed by the disciplining authority is so unreasonable as to warrant such intervention.”
City of Vallejo
Vallejo Police Officers Association
121 LA (BNA) 1659
CSMCS Case No. ARB 04-2674
September 22, 2005, Decided
March 8, 2006, Reported
Melvyn D. Silver, Arbitrator
I. General Background
By letter of October 14, 2004, City of Vallejo, California's Chief of Police Robert W. Nichelini informed Police Officer Z__ that he was being terminated from his position as a patrol officer effective October 23, 2004. Termination was based upon 4 incidents that occurred during a 3-month period of time, as follows:
1. On February 25, 2004, Officer Z__ (Grievant) was investigating the assault of a student at Springstowne Junior High School. The student could not identify the other student who had assaulted him, and Grievant failed to conduct a basic criminal investigation.
2. On March 25, 2004, Grievant was detailed as the primary officer involving an altercation between two females. One of the females did not speak English. Grievant failed to request the services of an interpreter or to notice that one of the females was seriously injured. As a result, Grievant failed to instigate a criminal investigation nor to make a proper arrest of one of the females who was involved in the altercation and who was subsequently arrested for felony assault.
3. On April 24, 2004, Grievant was detailed to a call involving subjects sleeping in a motor vehicle. Grievant did not arrive on the scene for 18 minutes during which time Grievant's backup and two other officers arrived to handle the situation. Grievant's response time was considered unacceptable.
4. On May 3, 2004, Grievant was detailed to investigate a suspicious subject tampering with a vehicle in the driveway at a home. The complaining victim informed the police that the suspicious individual had parked a vehicle in front of her house and had attempted to enter her vehicle. Grievant investigated a nearby residence where it was thought the suspicious person might be but made no effort to check out the vehicle in which the suspicious person had arrived, which obviously bore signs of being a stolen vehicle and which might have provided some clues as to the identity of the suspicious person.
These four acts, in conjunction with a prior 10-hour suspension in August 1998 and a 30-hour suspension in June 2000, led the Department to conclude that Grievant should not continue as a Police Officer.
The parties stipulated to the issue as follows:
Was Officer Z__ terminated for just cause? If not, what shall be the remedy?
III. Factual Background
1. The School Incident
On February 25, 2004, Springstowne Junior High School student Anthony E. was surrounded by several students while on school grounds and assaulted. Anthony never saw the student who had assaulted him. The school is located near a McDonald's restaurant. After the assault, Anthony went to the McDonald's where he was met by his sister, Jessica E., who is approximately 20 years of age. Jessica reported the incident to two officers who were at another fast-food restaurant adjacent to McDonald's. Anthony was directed to return to the school to look at the yearbook to see if Anthony could identify any of the students as the student who assaulted him. Jessica and Anthony requested that the officers interview some of the approximately 300 students who were milling about or near the McDonald's. The two officers declined to do so, and, at that time, received a call to respond to the scene of an incident involving some 50-60 students involved in a fight at another school. The officers promptly left. At this time, Grievant was seen in his patrol vehicle at the McDonald's. Jessica and Anthony approached Grievant and reported what had happened. Grievant similarly suggested that Anthony look at photos of other students in the yearbook, and that, if an identification could be made, Anthony should report it to the Police Department. Grievant declined to interview any of the numerous schoolchildren in or about the McDonald's, since Anthony was unable to make a positive identification. Grievant then phoned in that his investigation was complete and no report would be filed.
Subsequently, Jessica reported the incident to the Police Department as an upset citizen, and further investigation ensued.
2. The Altercation Involving Two Females (Translator Incident)
On March 25, 2004 Grievant was detailed to an altercation involving two females, C__ and M__. C__ requested police assistance. The altercation apparently occurred because M__ had promised to watch C__'s children and had failed to do so. C__ spoke English, and M__ spoke only Spanish. Grievant did not speak Spanish. Upon arrival, Grievant interviewed C__ but was unable to communicate with M__ or two of her friends who were present. Grievant offered C__ the option of having a citizen's arrest made of M__. C__ declined to do so. M__, who claims to have shown her injuries to Grievant, then left the scene and proceeded to the local hospital where she was treated for a serious tear to her ear and other injuries. She was photographed wearing a bloody sweatshirt with blood on her face as well. C__ was subsequently arrested on a felony assault charge. Grievant claims to have believed that he had requested the assistance of a translator, but the police dispatch system contains no such request.
3. The Late Arrival Incident
On April 21, 2004 Grievant was dispatched to a call of “vehicles with suspicious subjects sleeping inside.” Grievant responded immediately to the initial call advising that he was en route. While en route, Grievant stopped at a local police substation to use the restroom facilities and then proceeded to the scene. During the 18 minutes it took Grievant to respond to the call, other officers arrived at the scene and handled the situation. The Department considered the 18-minute interval excessively long and placed the other officers in danger by the late arrival of Grievant.
4. The Stolen Car Incident
On May 3, 2004 a local resident called the Police Department to report suspicious activity near her residence. A young male had parked in front of her house, walked into her driveway, and attempted to enter her vehicle. When he was confronted, the suspiciously-acting young male left in the direction towards another home. The police were called and Grievant assigned to respond. Upon arriving at the scene, Grievant investigated the local area for signs of the suspicious person but could find none. Upon leaving the scene, Grievant met the reporting party who had left in the interim to drive her child to school. The reporting party relayed the incident again to the officer (Grievant), who then reported the incident as closed. Grievant failed to investigate the presence of the Chevrolet Blazer parked in front of the reporting party's home which had been reported by the reporting party as the vehicle driven by the suspicious person. The vehicle was subsequently discovered to be a stolen vehicle with the right front passenger door lock punched out and the ignition lock broken.
IV. Positions of the Parties
1. The City's Position
The City takes the position that the four incidents combined reflect a lack of competence on the part of Grievant, and, coupled with prior discipline, warrant termination. Specifically, the City alleges that Grievant failed to properly investigate the incident involving the middle school student, resulting in a complaint being made to the Police Department. The City further alleges that Grievant did, in fact, see the nature and extent of injuries on M__ and failed to properly act. In particular, Grievant was aware he had the services of a Spanish-speaking translator available which would have clarified the entire situation, but failed to request assistance of a translator. The entire investigation, the City alleges, was grossly inadequately performed. The City further alleges that the 18 minutes that it took Grievant to reach the scene of the suspicious vehicle with individuals sleeping inside could not be accounted for. Upon various test runs, it should have taken no more than 6-10 minutes for the officer (Grievant) to reach the scene. This potentially placed other officers in jeopardy. Finally, the stolen car incident reflected a grossly inadequate investigation by the Grievant. Even the simplest investigation would have required the officer to check out the vehicle in which the suspicious person arrived which would have revealed that the vehicle was a stolen vehicle and possibly uncovered more evidence that might have ultimately lead to the arrest of the suspicious person.
The City argues that these four incidents, coupled with prior discipline, warrant termination. The Chief testified that, by itself, the stolen automobile incident would have warranted termination. The City thus argues that Grievant was terminated for just cause, citing various sections of the Vallejo Police Department General Orders and Rules. The City argues that Grievant repeatedly failed to competently perform his job duties and that “the rapidity with which these incidents occurred did not allow for progressive discipline between incidents.” However, cumulatively either the four incidents by themselves, or coupled with prior discipline, warrant termination.
2. Position of the Union
In “The School Incident,” the Union argues that Grievant acted properly at that time. Additionally, the other two officers who initially were approached by Anthony and Jessica were never disciplined or reprimanded for their actions while Grievant was. The other officers acted in exactly the same manner as Grievant. Consequently, either all of the officers acted correctly, or all of them should have been disciplined, and, by disciplining Grievant, unequal discipline has been rendered to Grievant. Chief Nichelini testified that this incident, by itself, would not have resulted in termination.
In “The Translator Incident,” the basic facts of that incident are not disputed. The Grievant argues that he never was presented by M__ with the injuries and was unaware that she suffered any serious injury. Additionally, Grievant believed that he had requested a translator although the dispatch tape did not reflect such a request. The failure to request an interpreter does not warrant termination in this instance.
Regarding “The Late Arrival Incident,” Grievant testified that, after using the restroom at a police substation, he inadvertently drove in the wrong direction to respond to the scene of the suspicious vehicle. His late arrival was due to his error in proceeding initially in the wrong direction. There was no risk to the initial responding officer as other officers promptly responded, and he was unaware that his late arrival was the cause of any problem. The late arrival was completely the result of a driving error. The City's position that the time delay was unreasonable is by itself unreasonable.
In the “Stolen Car Incident,” upon investigating the incident, the reporting party never specifically pointed out the vehicle in which the suspicious person had arrived, and Grievant was focused on attempting to locate the suspicious person more than investigating the vehicle in which the suspicious person had arrived. Additionally, there was no evidence that the suspicious vehicle suffered the punched-in lock and broken ignition switch at the time it was parked in front of the reporting party's home, and this damage could have occurred within the two days the vehicle was parked in front of the reporting party's home prior to the vehicle being towed away.
V. Contract Provisions
City of Vallejo Administrative Rule Number 2.35 Section 6.1 states as follows:
The City of Vallejo may, in its sole discretion, employ a progressive discipline sequence involving some or all of the following steps: counseling, oral reprimand, written reprimand, suspension, reduction in pay, demotion, and discharge. The City may, however, decide to skip one or more of these steps, depending on the circumstances. In addition, the City reserves the right not to employ progressive discipline and proceed directly to termination where the City deems it appropriate to do so.
The Supplemental Agreement between the City of Vallejo and the Vallejo Police Officers' Association, as amended July 24, 2003, states under Section 2 as follows:
Section 2 Removal of Disciplinary Action from Employee's Personnel File
Disciplinary actions shall be removed from an employee's personnel file according to the following schedule:
1. Written Reprimands—Sustained or unappealed written reprimands shall be removed from the employee's personnel file two years from the date of issue, unless such written reprimand is used as part of a progressive disciplinary action subjected to the schedule in subsection 2 below.
2. Suspensions, Fines or Demotions—Sustained or unappealed suspensions, fines or demotions shall be removed from the employee's personnel file five years from the date of issue or in the case of a sustained (or modified) appeal of such action by the Civil Service Commission, five years from the date of the decision of by (sic) the Civil Service Commission, unless such disciplinary action is used as part of a progressive disciplinary action taken within the five year period.
The Agreement also lists the jurisdiction of the Arbitrator as follows:
5. Jurisdiction of Arbitrator
a. The arbitrator's jurisdiction shall be limited to determining if the disciplinary action taken is for “just cause.” The arbitration may reverse, modify, or uphold the disciplinary action. The decision of the arbitrator shall be final and binding.
Grievant received the following relevant prior discipline:
• 10-hour suspension, August 1998
• Verbal reprimand, July 31, 1999
• 30-hour suspension, June 2000
Since the present actions occur in the year 2004, or within 5 years of the period in which disciplinary action for suspension may be considered, the Arbitrator will consider these prior disciplinary actions.
After consideration of the reports provided and the testimony of witnesses, the Arbitrator concludes that the incident involving Anthony E. at the middle school was not handled in any manner that should have led to disciplinary action for that incident against Grievant. Grievant's actions were no more or less than the actions of the original two officers to whom the incident was reported. The Arbitrator fails to see where any further action could have been taken. The young student was unable to identify the student who had struck him. While the estimate of students near the McDonald's range from 60 to 300 students, it does not seem reasonable to conclude that the officer should have made an attempt to interview any, or certainly all, of those students who would, by definition, have had to have been interviewed on a random basis. While the incident may not have been investigated to the satisfaction of the concerned parties—Anthony and Jessica—the Arbitrator fails to see what more could have been done or that any improper action was taken by any of the three officers involved. Consequently, this incident will not be considered in the determination of what discipline, if any, should be applied to Grievant.
The Translator Incident which occurred on March 25, 2004 is far more serious. Upon review of the photographs and the statements offered by M__ to the investigating officer in the Internal Affairs Investigation, the Arbitrator is convinced that Grievant clearly saw, or clearly should have seen, the blood upon M__'s sweatshirt and her face and that she, in fact, was seriously injured. In such an incident, merely “thinking” that an interpreter had been called for is not a substitute for assuring that an interpreter, in fact, had been called for and possibly medical attention as well. The Arbitrator concludes that Grievant's performance in this matter failed to meet the standards required by the Vallejo Police Department. As Grievant noted in his brief, “Z__ thought he called one [interpreter] and had an intention to call one, and recognizes there is really no excuse for not having called one.”
As to The Late Arrival Incident, Grievant's testimony in regard to his late arrival was simply unconvincing. The Arbitrator fails to see that even with Grievant's taking a wrong turn, 18½ minutes to make a 2½ minute drive was simply unacceptable. Officer Madison arrived first at the scene, went to the vehicle in which individuals were sleeping, observed them sleeping, went back to her vehicle, and then requested an ETA for Grievant. Upon hearing the request for ETA, two other officers arrived. The entire incident was concluded peaceably. However, there is a question as to whether Officer Madison should have been required to approach the vehicle on her own absent the backup of Grievant, due to the Grievant's delay in response. The Arbitrator views this as a serious incident, and again, views Grievant's explanation as unacceptable.
The Stolen Car Incident: The initial report on May 3, 2004 as received by the Grievant clearly stated that either a “gray Bronco or Blazer” had been parked in front of the reporting party's home. Grievant's explanation that he was focused solely on looking for the suspicious person and, therefore, failed to conduct a thorough investigation is not credible. For whatever reason, it is clear that Grievant failed to conduct a thorough investigation of the incident.
Grievant, an 18-year veteran of the Department, presented testimony from numerous police officers with whom he had worked over a number of years in the Vallejo Police Department, attesting to his competence as an officer, to his ability to get along with other officers, and to the fact that none of these other officers ever felt unsafe because of any actions taken by Grievant. Despite Grievant's longevity, he is not an 18-year employee with a spotless record.
The City argued that Grievant's performance reviews going back over a number of years show Grievant's lack of interest and willingness to perform his job duties and a lack of interest in even remaining as a police officer.
In the performance report coveting the period May 27, 2003 through May 27, 2004, Grievant failed to “meet standards” in 3 of the 4 categories upon which he was judged. The performance report noted that “Officer Z__ is basically capable of doing the job satisfactorily. I believe that if he tried, he has the tools to do the job. With 17 years of experience, he should be able to handle most situations.
At times, however, it is difficult to tell if he doesn't know the job or that's just an excuse for not doing the job ...” Subsequently, the evaluating officer noted “a common thread in all of the above was an attitude of trying to get by, by doing as little as possible.” On March 30, 2004 an Unfavorable Evaluation Comment Form was given to Grievant, noting “during the first 3 months of 2004, Officer Z__ has been consistently and unreasonably slow to handle calls, conduct investigations, and respond to priority calls ... I have concluded that Officer Z__ moves at this pace so that he can do as little as possible ...”
Grievant's prior performance report covering the period of May 27, 2002 through May 27, 2003 resulted in Grievant meeting performance standards in every category. The performance review of May 27, 2000 through May 27, 2001, however, finds the officer failing to meet performance standards in 3 of the 4 categories upon which he has been rated. The performance evaluation covering the period May 27, 1999 through May 27, 2000 finds Grievant with unsatisfactory ratings in 10 of 16 categories. The Work Habit section notes that “Officer Z__ doesn't fully investigate and fails to properly document the cases he responds to. He lacks enthusiasm for his job and appears to be lazy ...”The Grievant's prior discipline has been noted.
It appears that Grievant's work habits fluctuate from year to year without any particular consistency. The handling of the matters involving the altercation between the two women, the stolen car incident, and the late arrival incident would appear to be consistent with the performance review evaluations reflecting the work of an officer who tries to minimally get by with his job duties, rather than with the performance evaluations in which Grievant improved his performance. The Arbitrator need not decide whether the stolen car incident by itself warranted termination or whether progressive discipline, when applied to the 3 remaining incidents, would reach the level of termination. Where there is just cause for discipline, it is not the Arbitrator's role to impose his own standard of discipline in place of that of the disciplining authority unless the Arbitrator concludes that the discipline imposed by the disciplining authority is so unreasonable as to warrant such intervention. The Arbitrator concludes in this instance it is not.
The prior suspensions of 10 hours and 30 hours remain on Grievant's record for the purposes of progressive discipline. The Arbitrator has sustained 3 acts in this case that warrant discipline. The City argues that the 3 acts occurred so quickly it could not have imposed additional discipline in a progressive manner. The Arbitrator is of the opinion that these 3 acts, in combination with the prior acts, justify termination. The City is not unjustified in reaching the conclusion that termination is warranted. For this reason, the Arbitrator makes the following Award:
The Grievance is denied. The Arbitrator finds that termination was for just cause.