City of Waco
N. (Individual Grievant)
126 LA (BNA) 567
FMCS Case No. 09-01184
May 9, 2009
Before Daniel F. Jennings, Arbitrator (Hearing Examiner) *
Was Appellant N__’s promotional bypass to Sergeant authorized by the statute and supported by the facts? If not, what is the appropriate remedy?
Both parties agreed at the beginning of the instant arbitration hearing that the case at bar is properly before this Arbitrator.
Texas Local Government Code
Chapter 143—Municipal Civil Service for Firefighters and Police Officers
Section 1 43.036—Procedure for Making Promotional Appointments
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(f) Unless the department head has a valid reason for not appointing the person, the department head shall appoint the eligible promotional candidate having the highest grade on the eligibility test. If the department head has a valid reason for not appointing the eligible promotional candidate having the highest grade, the department head shall personally discuss the reason with the person being bypassed before appointing another person. The department head shall also file the reason in writing with the commission and shall provide the person with a copy of the written notice. On application of the bypassed eligible promotional candidate, the reason the department head did not appoint that person is subject to review by the commission or, on the written request of the person being bypassed, by an independent third party hearing examiner under Section 143.057
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Section 143.067—Hearing Examiners.
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(c) The hearing examiner’s decision is final and binding on all parties. If the firefighter or police officer decides to appeal to an independent third party hearing examiner, the person automatically waives all rights to appeal to a district court except as provided by Subsection (j).
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(j) A district court may hear an appeal of a hearing examiner’s award only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. An appeal must be brought in the district court having jurisdiction in the municipality in which the fire or police department is located.
City of Waco Police Department General Orders
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Section 60.01: 2.b(4): Persons are not arrested for a traffic violation in lieu of issuing a citation unless approved by a supervisor.
Statement of the Facts
In late 2008 the City promoted two police officers to the rank of Sergeant. Appellant N__ had the highest grade for both eligibility lists. On September 30, 2008, Police Chief Brent Stroman provided the Appellant with a written bypass notice and personally discussed the reasons for that promotional bypass with the Appellant. Later, on December 11, 2008, Police Chief Stroman provided the Appellant with a second bypass notice and again personally discussed the reasons for the second promotional bypass. The Appellant appealed both promotional bypasses. The instant arbitration pertains to the second promotional bypass.  Chief Stroman testified during the instant arbitration hearing that he used the same reasons on both occasions to bypass the Appellant for promotion to Sergeant. The Appellant’s appeal pertaining to the second promotional bypass was filed on December 12, 2008 and the matter moved to the instant arbitration hearing on April 17, 2009.
Position of the City
The City presents the following eight reasons that were contained in Chief Stroman’s
December 11, 2008 promotional bypass letter to the Appellant.
1. You have failed to demonstrate the level of knowledge of the law I would expect of a person who would fill the position of Sergeant. For example on April 23, 2008, you arrested a Hispanic male for not wearing a seat belt while a passenger in the backseat of a vehicle. Failure of an adult to wear a seatbelt while seated in the backseat of a vehicle is not a violation of law for which an arrest can lawfully be made. By your own admission, you did not know that law.
2. You have failed to demonstrate a level of familiarity with departmental policies I would expect of a person who would fill the position of Sergeant. For example, the Department has a policy requiring an officer to notify his Sergeant before making an arrest based on a traffic violation. You failed to follow that policy. If you had followed that policy, you could have avoided making that improper arrest.
3. You have failed to demonstrate the demeanor and attitude I would expect of a person who would fill the position of Sergeant. For example, you have made statements and comments about illegal immigrants which reflect a bias and reflect poorly on the department. These statements were made in front of personnel at the McLennan County Jail and resulted in complaints by jail personnel.
4. On September 19, 2008, you received three disciplinary actions based on sustained complaints on the incidents described above. Specifically, you received a two-day suspension for the wrongful arrest, [and] you received a one-day suspension for speech which reflected unfavorably on the department and you received a written reprimand for failure to follow department policy.
5. In the Waco Police Department the Sergeant’s position, as first line supervisor, includes roles such as team leader, coach and disciplinarian, and it is imperative that the person filling the position be familiar with applicable law [and] with department policy so that you could effectively fill those roles. Your conduct and recent events are inconsistent with you filling those roles.
6. It is imperative that all members of the police organization present professional and respectful conduct especially avoiding behavior which is construed as biased towards an individual or a particular group of people. You have failed to avoid such behavior.
7. In the Waco Police Department, the Sergeant must set an example for his/her subordinates and must command the respect of supervised personnel. Conduct like that described above interferes with your ability to effectively set that example.
8. The circumstances and events references above indicate that you have displayed behavior contrary to the behavior I expect of a Sergeant, and which I believe is contrary to what is required for you to effectively serve as a Sergeant. In addition, the recency of the behavior and circumstances undermine your ability to effectively carry out the role of a Sergeant in a credible manner and hinder my role as Department Head to hold supervisors accountable for their actions.
During the instant arbitration hearing, Chief Stroman provided the following testimony regarding the Appellant’s promotional bypass to Sergeant:
1. At the time of instant arbitration hearing, Chief Stroman had been employed by the City’s Police Department for 32 years and the Appellant had been so employed for 20 years. Thus, Chief Stroman had known the Appellant the entire time that the Appellant has been employed as a police officer by the City.
2. On April 23, 2008 the Appellant arrested D__ for not wearing a seatbelt while in the backseat of an automobile. However, the Appellant did not have probable cause to stop the vehicle in which D__ was a passenger.  Chief Stroman testified without dispute, that when a police officer makes a traffic stop without probable cause, (i) any evidence that is obtained during that traffic stop cannot be used in a criminal prosecution and (ii) the possibility of a lawsuit exists for a civil rights violation.  Thus the Appellant has created the risk of a possible lawsuit against the City.
3. The Appellant’s Supervisor, Sergeant Al Kirk, who was not contacted by the Appellant when D__ was arrested knew at that time it was not against the law for an adult to be in the backseat of an automobile without a seatbelt. Thus had Sergeant Kirk been so contacted, D__’s arrest could have been avoided. 
4. Ms. Sue Tweedle, Booking Supervisor at the McLennan County jail, received complaints from her employees that the Appellant had made statements pertaining to illegal immigrants that reflected a bias against illegal immigrants.  Ms. Tweedle examined the Appellant’s arrests and reported that 64 percent of those individuals arrested by the Appellant during the applicable period were Hispanics. Further Ms. Tweedle alleged that the Appellant “appears” to be racially profiling Hispanics. The Chief explained that regardless of whether the Appellant’s comments were derogatory they formed an impression to others that the Appellant was biased. Such a public presentation from a police officer or a supervisor in the City’s Police Department is unsatisfactory.
Also, during the instant arbitration hearing, Chief Stroman was asked if the Appellant was willing to give warnings to individuals in situations involving traffic enforcement. Chief Stroman testified that: “[Appellant] is very much black and white with very little discretion. When he stops people they receive a citation. Having the discretion available and not using it, is a real concern to me.” Finally, the City maintains that while the Appellant’s Counsel provided evidence pertaining to the Appellant’s reputation and abilities, alternative views also exist. For example, during the instant arbitration hearing, the City explained that District Attorney Prosecutor Julie Pandya “kicked-out” every one of the Appellant’s cases that came before her in City Court stating that the Appellant lacked credibility. 
In summary, the City explains that Chief Stroman’s decision to bypass the Grievant was difficult because the Chief has known the Appellant for a long time. However, the City maintains that Chief Stroman was deliberate and thoughtful in rendering the promotional bypass decision and that such a decision was not unfair, arbitrary or discriminatory. Accordingly, the City argues that based on all of the foregoing evidence and testimony, there is no factual basis to overturn Chief Stroman’s promotional bypass involving Appellant N__ and requests that the instant appeal be denied.
Position of the Appellant
By way of background, the Appellant’s Counsel states that an arbitration hearing has been conducted pertaining to the two disciplinary actions in which suspensions were imposed upon the Appellant.  However, the respective hearing examiner in that hearing has not rendered a decision at the time of the instant arbitration hearing. The Appellant’s Counsel further explains that Appellant N__ began his career with the City’s Police Department in 1988 and not received any written suspensions prior to the instant incidents and has not received any written suspensions since the instant incidents. However, the Appellant does not have a work history that is free of any disciplinary action in that the Appellant has received oral and written warnings in the past. The Appellant’s Counsel now turns to the following six issues: (a) the Appellant’s arrest of D__, (b) the Appellant’s alleged bias against illegal aliens, (c) the allegation of racial profiling, (d) the Appellant’s lack of discretion in situations involving traffic enforcement, (e) the Appellant’s past work history and (f) commendations received by the Grievant.
(a) The Appellant’s arrest of D__: During the instant arbitration hearing, the Appellant testified that he believed that individuals anywhere in a vehicle were required to wear seatbelts and stated that “I just made a mistake.” Further, in the City’s investigation of D__’s arrest, nine patrol officers and one sergeant stated that they also believed that individuals anywhere in a vehicle were required by law to wear seatbelts.
(b) The Appellant’s alleged bias against illegal aliens: During the instant arbitration hearing, the Appellant testified that it became difficult to properly identify illegal aliens during the booking process because of the use of different invalid documents used by those illegal aliens. The Appellant testified during the instant arbitration process that he discussed that situation with booking personnel in the McLennan County jail, with his supervisors, and with Chief Stroman. During those discussions, the Appellant testified that he had used the term “anchor baby.” Later, Sergeant Maldenado informed the Appellant that several booking clerks had given statements about the Appellant’s use of the word “anchor baby”. The Appellant testified during the instant arbitration hearing that once he became aware that booking clerks had filed such statements, he ceased using the term “anchor baby” and that he was not biased against illegal aliens.
(c) The allegation of racial profiling: The Appellant provided the following statements during the instant arbitration hearing: 
As I began working traffic earlier in the year  I noticed I was encountering a large number of illegal aliens. Inadvertently I began uncovering a number of crimes being committed by them, mainly felony fraud involving false identification cards and social security cards, misdemeanor failure to identify charges, and the abuse of Medicaid, food stamps, welfare, and health care. I immediately told Sergeant Kirk about this as we have never dealt with illegal aliens in the past and I never realized they were committing so many crimes. These were mainly state violations although some of them cross into Federal violations and all illegal aliens are violating Federal Immigration Laws. Legal aliens are not violating Federal Laws and I don’t believe I have found any that are violating the many other laws and programs that I have mentioned.
The Appellant also testified during the instant arbitration hearing that (1) the Department conducted an investigation into the allegation that the Appellant was profiling Hispanics, and (2) Sergeant Maldenado stated: “after two months of investigation in which investigators examined three years of the Appellant’s traffic citations and taking statements from people working with the Appellant”, that the allegation of profiling was “unfounded”.  The Appellant testified during the instant arbitration hearing that he had not engaged in profiling Hispanics and had “at least one” meeting with Chief Stroman on how the Appellant could enforce the law without being perceived as profiling.
(d) The Appellant’s lack of discretion in situations involving traffic enforcement: The Appellant provided the following testimony during the instant arbitration hearing: “I don’t want to get into the habit of letting somebody go because they are a friend, they know somebody that you know, or just treating people unfairly. I want to treat everybody evenly and fairly. So I basically write most people citations when I stop them for an offense. And if there is mitigating circumstances, I feel that is the judge’s place to look at it and decide whether or not they should have a lesser fine or no fine at all.” 
(e) The Appellant’s past work history: The Appellant provided the following work history during the instant arbitration hearing: 
1988-1995: Patrol Division (1991-1993 also functioned as a Field Training Officer);
1996-1998: Grant Administrator replacing a sergeant who had previously performed those duties;
1998 - time of the instant arbitration hearing: Patrol Division.
Except for a three year period, 1996-1998, the Appellant has spent his career with the Patrol Division.
During the instant arbitration hearing the Appellant provided the following statements: 
At the beginning of last year , after Chief Stroman had taken over, he began to request officers to do more traffic enforcement. I started encouraging all the other officers on the day shift to do more traffic enforcement. Typically the day shift is known for having older officers that don’t do a whole lot… . Last year  I had several good arrests from traffic … 40 ounces of cocaine from guys selling cocaine out of a vehicle and stopping a car for running a red light and determining that the occupants were involved in the robbery of George’s Restaurant … I began working really hard … some guys kidded me about being a rookie again. I wanted to do all I could for the Department.
In 2008 the Appellant made 141 adult arrests, 94 traffic arrests, and wrote 1467 traffic citations. Sergeant Kirk stated that the Appellant is “writing more citations each month than the rest of the platoon combined.”
(f) Commendations received by the Grievant: The Appellant’s Counsel introduced (1) approximately forty-four letters and/or memorandums from different City Police officials, District Attorneys and private citizens for the years 1998 through 2008 commending the Appellant for a variety of actions and (2) the following recent City Police Department commendations received by the Appellant:
Police Commendation Bar—2003
Certificate of Merit—2004
Meritorious Unit Citation—2008
Police Commendation Bar—2008
Also introduced was a letter from a trucking company executive describing the Appellant’s role in arresting an “enraged and deranged ex-employee” who had shot and severely wounded an employee at the trucking company’s location in Waco. Finally, the Appellant was nominated for the Officer of the Year Award in 2008.
In summary the Appellant’s Counsel stated that the Appellant does not have any disrespect for Chief Stroman or for any individual that provided input into this instant arbitration hearing. Rather the Appellant is seeking to have the peace of mind and the opportunity to know that Chief Stroman’s promotional bypass decision was proper under Chapter 143 of the Texas Local Government Code. Accordingly, the Appellant’s Counsel requests that this Hearing Examiner examine the testimony and exhibits presented during this instant arbitration hearing in determining whether Chief Stroman has carried his burden of proof and his weight in bypassing Appellant N__ for the promotion to Sergeant.
Opinion of the Arbitrator
Both Parties were well represented for the case at bar. The issue that must be determined by this Arbitrator (Hearing Examiner) in the instant case is whether Chief Stroman’s decision to bypass the Appellant for promotion to Sergeant was authorized by the statute and supported by the facts. As stated in Section 143.036(f) the department is to promote the individual having the highest grade on the promotion eligibility list unless a valid reason exits for not doing so.  During the instant arbitration hearing, Chief Stroman testified that the “Sergeant’s position, as a first line supervisor, includes roles such as team leader, coach and disciplinarian. And it is imperative that the person filing the position be familiar with applicable law and with departmental policy.” The City proceeded to list a number of items, which from their viewpoint would disqualify the Appellant from being promoted to Sergeant. Also, the Appellant’s Counsel introduced into the record, a number of commendations and positive work activities of the Appellant.
After a careful review and study of all the evidence and testimony introduced during the instant arbitration hearing, this Neutral is convinced that Chief Stroman’s reason for bypassing the Appellant for promotion to Sergeant are valid. Such a determination is based on the following two issues: (a) the arrest of D__ and (b) the Appellant’s use of discretion involving traffic enforcement. Following is the reasoning of this Arbitrator pertaining to the preceding two issues.
(a) The arrest of D__: It was undisputed during the instant arbitration hearing that the Appellant did not have “reasonable cause” on April 23, 2008 to stop a vehicle in which D__ was a backseat passenger and was not wearing a seatbelt. The Appellant arrested D__ and transported him to the McLennan County jail. In doing so, the Appellant violated a City Police Department General Order in that individuals are not to be arrested for traffic offense unless approved by a supervisor.  Further, the law does not require individuals in the backseat of a vehicle to wear seatbelts. During the instant arbitration hearing, the Appellant testified that he was not aware that the law did not require backseat passengers in a vehicle to wear seatbelts. The concern that this Referee has with this instant issue is that (1) the Appellant violated a General Order in not notifying his supervisor when he arrested D__ for a traffic offense and (2) arresting an individual for not wearing a seatbelt seems to be rather harsh.
(b) The Appellant’s use of discretion involving traffic enforcement: During the instant arbitration hearing the Appellant testified: “I basically write most people citations when I stop them for an offense. And if there is mitigating circumstances, I feel that is the judge’s place to look at it and decide whether or not they should have a lesser fine or no fine at all.” Chief Stroman testified during the instant arbitration hearing that the use of discretion is an important aspect of being a supervisor. This Umpire notes that the use of discretion is not an act of clemency, but in many instances mitigating circumstances may be present during traffic offences which give rise to the use of discretion.
Based on all the foregoing, this Arbitrator rules that Chief Stroman’s decision to bypass Appellant N__ for promotion to Sergeant was authorized by the statute and was supported by the facts. In making such a determination, Chief Stroman’s decision was not capricious, arbitrary, or unreasonable.
The instant appeal is denied.
* Selected by parties through procedures of the Federal Mediation and Conciliation Service. A Hearing Examiner, under Texas Local Govt. Code 143.067 renders a final and binding decision.- editor.
1. A scheduling matter resulted in the second promotional bypass having the first hearing.
2. City Exhibit #13 stated that the Appellant noticed a vehicle with what appeared to be an expired registration tag. As the Appellant was passing the vehicle he observed D__ was not wearing his seat belt. The Appellant then stopped that vehicle and arrested D__ for not wearing a seatbelt. During the traffic stop, the Appellant observed that he had made a mistake in that the registration tag on the stopped vehicle had not expired.
3. Undisputed testimony was provided during the instant arbitration hearing that individuals in the United States have the right not be arrested unless there is probable cause for their arrest.
4. Ibid, p. 38.
5. The Appellant has used the words “Anchor Baby” which was alleged to be a derogatory term.
6. Ibid, p. 154. Ms. Pandya’s statement was not disputed during the instant arbitration hearing.
7. These include a two-day suspension for the wrongful arrest and the one-day suspension for speech that had an unfavorable reflection on the City’s Police Department
8. Ibid, pp. 118-122.
9. Ibid, pp. 124-126.
10. Ibid, pp. 117-118.
11. Ibid, pp. 111-117.
12. Ibid, pp. 122-123.
13. Texas Local Government Code: Chapter 143 - Municipal Civil Service for Firefighters and Police Officers
14. General Order 60.01 2.b(4).