Upload
e-frank-cornelius
View
43
Download
0
Embed Size (px)
DESCRIPTION
Arbitration opinion of E. Frank Cornelius, PhD, JD, in Fraternal Order of Police, Jacksonville Consolidated Lodge 5-30 and Office of the Sheriff, Consolidated City of Jacksonville, which was published in 107 LA 972, 24 LAIS 3328 (Cornelius Arb 1996). For additional information, visit www.arbitrator.org.
Citation preview
FEDERAL MEDIATION AND CONCILIATION SERVICE In the Matter of the Arbitration between FMCS No. 96-18052 FRATERNAL ORDER OF POLICE, JACKSONVILLE CONSOLIDATED LODGE 5-30, Union, and OFFICE OF THE SHERIFF, CONSOLIDATED CITY OF JACKSONVILLE, Employer. _________________________________/
OPINION OF THE ARBITRATOR
October 15, 1996
After a Hearing Held September 27, 1996 At City Hall, Jacksonville, Florida
For the Union: T.A. Delegal General Counsel FOP Lodge 5-30 5530 Beach Boulevard Jacksonville, FL 32207
For the Employer:
Joseph Meux, Jr. Assistant General Counsel 600 City Hall 220 East Bay Street Jacksonville, FL 32202
2
Background
The Jacksonville Sheriff's Office provides its officers with the
opportunity to engage in secondary employment with local employers. In
such employment, officers wear their police uniforms, carry their service
pistols, and drive police cars. They are paid a fixed $20/hr. by the secondary
employer. The officers must pay the City $2/hr., to cover the costs of
uniforms, guns, cars and workers’ compensation.1
The program of secondary employment is mutually beneficial to the
City and its police officers. Through it, officers are able to supplement their
incomes, and the City is able to increase its police presence throughout the
community, at little or no cost. Local employers are provided with a ready
pool of trained security personnel, and the employers and their customers
and other employees enjoy increased safety. The public benefits, and the
City has an interest in the conduct of its police officers working in the
program.
An employer desiring the services of off-duty officers registers with
the Sheriff's Office. A supervisor is assigned the responsibility for seeing
that the employer's personnel needs are met. Officers who work off duty for
the employer record their time biweekly on sheets provided by the Sheriff's
1 The workers’ compensation arrangement was not explained.
3
Office. An officer records his secondary hours worked, totals his time,
computes the amount due him, signs his time sheet, and turns the sheet into
the supervisor, who reviews it and signs his approval.
Time sheets are entitled “INVOICE, OFFICE OF THE SHERIFF,
TIME SHEET”. Completed time sheets are sent to the employer, who pays
the officers directly. An officer receives a copy of his time sheet with his
paycheck.
In mid October 1995, off-duty police officers began working at the
Imperial Estates Apartment Complex in Jacksonville. Sergeant R.S. Hughes2
scheduled officers to work at the complex. In late October, Officer [IW], the
grievant, began working in secondary employment at Imperial.
In January of 1996, Sergeant Hughes found some problems with the
time sheets of an officer working in secondary employment at the Imperial
Estates Complex. This finding led Sergeant Hughes to check the time sheets
of other officers, including grievant. Sergeant Hughes discovered that
grievant had submitted two time sheets covering the same period, 10/30/95-
11/12/95. These were introduced as Sheriff's Exhibits ##1&2 (“SX1&2”).
Sergeant Hughes wrote a memorandum about grievant to Lieutenant
R.L. Townsend, which was forwarded to the Sheriff's Internal Affairs
2 Now Lieutenant.
4
Section. The memorandum was introduced as Employee's Exhibit #1. The
case was assigned to Detective T.Q. Givens, Sr. for investigation.
Following his investigation, Detective Givens concluded that grievant
submitted two time sheets covering the same period and, as a result, was
paid twice for the same hours worked. The amount of the overpayment was
$160. Detective Givens concluded that grievant violated General Order
(“GO”) XI.2 and GO LIII.2 and recommended that charges of incompetency
and misconduct against grievant be sustained. Detective Givens’ report was
introduced as Sheriff's Exhibit #3 (“SX3”).
At some point, grievant repaid the money at issue.
Grievant's secondary employment privileges were suspended May 10,
1996.
Charges
Formal charges were issued against grievant in a letter to him, dated
May 13, 1996, and introduced as Sheriff's Exhibit #5 (“SX5”). The four
specific charges are set forth and discussed below.
Collective Bargaining Agreement
The collective bargaining agreement was introduced as Joint Exhibit
#1 (“CBA”). Although §9.3 of the CBA provides an accused officer the right
to a hearing before an ad hoc Sheriff's Disciplinary Hearing Board, grievant
5
waived his right. The Sheriff then imposed a 20-day suspension without pay
from grievant's primary employment as a police officer. Grievant requested
arbitration pursuant to CBA §§9.3(c) and 8.1, Step IV; his suspension has
been held in abeyance.
An arbitration hearing was held on September 27, 1996, at City Hall
in Jacksonville, Florida. Both parties were represented by counsel, who
stipulated that no inference is to be drawn from grievant’s waiver of a
hearing before the Sheriff’s Disciplinary Hearing Board. Counsel agreed not
to file briefs.
Decision
After a hearing and consideration of all the evidence, the grievance is
sustained in part and denied in part, and grievant is suspended from
secondary employment for a period of six (6) months, as more particularly
explained below. The charges are addressed in the order of easiest
explication.
Charge II
Grievant is charged with violating General Order LIII.2, of the Rules
and Regulations for the Organization and Government for the Office of the
Sheriff, which reads:
Secondary Employment
6
I. Policy
N. It shall be the responsibility of the officer working secondary employment to ensure that employee records are being kept either by the officer or the employer. These records shall be available for inspection upon request.
The record-keeping violation alleged in Charge II is addressed first.
Inasmuch as the General Orders were not introduced in their entirety,3 resort
is limited to the language of GO LIII.2 and to the factual context in which it
is being interpreted. From this limited vantage point, the purpose of GO
LIII.2 appears to be to ensure that the City gets its $2/hr. from officers’
secondary employment. In grievant's case, the City concedes that it received
all its money.
GO LIII.2 does not specify what “employee records” are required to
be kept, and the charges shed no light on the issue. The evidence is
uncontradicted that both the grievant and the employer kept records. The
grievant recorded his hours on a calendar and paid the City its hourly fees
accordingly. Imperial Estates maintained a Police Sign-In Sheet on which
officers (including grievant) recorded date, shift, and name (EX3), as well as
Purchase Order Recaps on which an officer's pay history was recorded
(EX2). These records are in addition to the biweekly time sheets previously
3 There was testimony that the General Orders are 4” thick, and counsel confirmed their voluminosity.
7
discussed (SX1-2).
The charges do not specify what records were not kept. In fact, ample
records were kept to satisfy GO LIII.2. The Sheriff has failed to establish
Charge II as proper cause for discipline.
Charge I
Grievant also is charged with violating General Order XI.2, of the
Rules and Regulations for the Organization and Government for the Office
of the Sheriff, which reads:
Code of Conduct
IV. Performance of Duty
A. Members shall maintain sufficient competence to properly perform their duties and to assume the responsibilities of their positions. They shall perform their duties in a manner which will tend to establish and maintain the highest standards of efficiency in carrying out the functions and objectives of the Sheriff's Office. Incompetency may be demonstrated by:
3. The failure to conform to work standards established for the member's rank, grade, or position;
In Charge I, grievant is accused of incompetency. Although the
General Orders were not introduced into evidence, the language of GO XI.2
indicates that it pertains to the responsibilities of a police officer acting in his
official capacity (“functions and objectives of the Sheriff's Office”; emphasis
supplied). It does not appear to extend to responsibilities of secondary
8
employment which are not the employee's responsibilities as a police
officer.4
In grievant's case, he is charged with violating GO XI.2, as follows
(SX5 at 6, ¶14):
[W] failed to properly document and compare the hours he worked at the Imperial Estates Apartements (sic) complex to the number of hours he received payment. As a result of [W]'s incompetency, he cashed a check for one hundred and sixty dollars ($160.00) for which he was not entitled to receive.
See also Detective Givens’ report, SX3 at 9. Grievant is being charged with
a two-part offense: failing to document and compare hours worked and paid.
Grievant's responsibility to document his secondary employment is
governed by GO LIII.2, a provision of the General Orders particularly
addressing the subject, which is covered under Charge II just discussed. In
Charge I, the Sheriff seeks to expand that responsibility through the more
general language of GO XI.2. This the Sheriff may not do, under the rule of
construction that the particular governs the general. See Elkouri & Elkouri,
How Arbitration Works (4th ed, 1985) at 356, Cum Supp (1985-89) at 92.
For this reason, Charge I cannot be sustained insofar as it pertains to
grievant's record-keeping responsibility, which is addressed in Charge II.
4 There is no suggestion that GO XI.2 may not apply to an officer's responsibilities in secondary employment, if they are the same as his responsibilities as a member of the Sheriff's Office. For example, if an off-duty officer operates his vehicle or discharges his firearm in secondary employment, in a manner below standards set by the Sheriff for on-duty police officers, then the conduct may come within the ambit of GO XI.2. However, that is not this case.
9
This leaves so much of Charge I as pertains to grievant's alleged
responsibility to compare hours paid with those worked. In a discipline case,
the burden of proof is on the employer. See How Arbitration Works at 661-
663, and CBA §4.1 (“proper cause“). In this case, the Sheriff offered no
evidence that a police officer has a responsibility to compare the hours he
works against the pay he receives (in either primary or secondary
employment). Grievant was employed as a police officer and security guard,
not as a payroll auditor. Consequently, the Sheriff has failed to establish
Charge I as proper cause for discipline.5
Charge III
Grievant is charged with violating City of Jacksonville Civil Service
and Personnel Rules and Regulations Rule 9.05 which reads:
“Cause shall include . . . willful violation of the provisions of law or departmental rules”.
No additional violations of departmental rules are alleged in Charge
III, beyond those alleged in Charges I and II, so that nothing further need be
said regarding rules violations. No State statute or City ordinance is cited,
and so no charge of “violation of the provisions of law” can be sustained.
Charge III, like Charges I and II, also fails.
5 There may, of course, be cases in which an overpayment is so glaring that the recipient is charged with notice of error, but this is not one of them. In this case, grievant, Imperial Estates, and the Sheriff's Office all had ample opportunity to detect the mistake.
10
Charge IV
Lastly, grievant is charged with violating City of Jacksonville Civil
Service and Personnel Rules and Regulations Rule 9.05(1) which reads:
“Cause shall include . . . conduct unbecoming a public employee”.
Rule 9.05(1) is a catch-all provision covering conduct not specifically
proscribed elsewhere. Only Charge IV provides a basis for disciplinary
action against grievant.
This case does not make a lot of sense. Grievant has been with the
Sheriff's Office 7 years. Except for this one incident, he has a good record.
He is industrious, working 6-7 part-time jobs to earn extra money, which he
needs to buy a house. It doesn't seem reasonable that he would jeopardize his
regular job and $1,000 per month in outside income just to cheat Imperial
Estates out of $160. As Chief W.B. Hodges suggested on the Confidential
Internal Investigation Recommendation, this whole thing “may have been an
oversight.”
On the other hand, grievant's reaction when the overpayment was
brought to his attention was hardly exemplary. Although he did repay the
money, it was not until months later. In the meantime, he engaged in denials
which come across as disingenuous. For example, he denied that he signed
11
the duplicate time sheets, although the signatures clearly are his.6 Denials
and delay create the appearance of impropriety.
It would have been so simple for grievant just to have admitted his
mistake, paid the money back, and gotten on with business. Instead, he
turned what may have begun as an innocent mistake into a questionable
incident. While to err may be human (and hence forgivable), a failure to
accept responsibility for one's mistake and to take prompt corrective action
is not proper conduct, especially for an officer of the law. Such a failure
constitutes “conduct unbecoming a public employee.“ Charge IV is,
therefore, sustained.
Appropriate Disciplinary Action
Four charges were leveled against grievant, only one of which can be
sustained. There remains the issue of appropriate disciplinary action. Had
the notice of misconduct averred that charges were being brought in the
alternative, then upholding any one of the charges might provide a basis for
sustaining the entire penalty assessed. However, the charges were not pled in
the alternative.
Since one out of four charges is upheld, the penalty might be
6 Much of the hearing was devoted to defense attempts to demonstrate that Imperial Estates’ payroll procedures were disorganized. Such evidence cannot obscure the fact that this case stems from grievant's own submission of duplicate time sheets.
12
sustained pro rata, were the charges of equal gravity. However, they are not.
To the contrary, they range from the serious (incompetence) to the criminal
(violation of law) to the non-specific (unbecoming conduct). For this reason,
a proportionate penalty is inappropriate.
In deciding upon appropriate discipline, arbitrators must be cautious
against imposing their own brand of justice and substituting their own
judgment for management's. See How Arbitration Works at 31, 664-665,
Cum Supp at 5-6. In an effort to avoid these arbitral pitfalls, guidance may
be found among the opinions of the managers involved.
In this case, those opinions are expressed in Employee's Exhibit #4
(“EX4”), the Sheriff's Investigative Recommendation Form. Chief W.B.
Hodges recommended only a written reprimand. Director J.N. Henry
recommended a major suspension and 2 years without extra work.
Undersheriff J.L. Gordon recommended a 20-day suspension and no extra
work for a year.
Since grievant's misconduct arose from secondary employment, it
seems reasonable that the penalty should relate to that employment. A six
(6)-month suspension from the Sheriff's program of secondary employment
represents an average among the disparate recommendations of Sheriff's
officials, pertaining to secondary employment, discounted for the fact that
13
only the least serious charge against grievant can be sustained. Grievant's
suspension began May 10, 1996. It should continue through November 9,
1996.
Dated: October 15, 1996 _______________________ E. Frank Cornelius, Arbitrator