KAREN G. ANDRES

                         ARBITRATOR

MEDIATION AND CONCILIATION SERVICE






APPEARANCES






INTRODUCTION

The arbitration arose pursuant to the Memorandum of Understanding (MOU) between County of San Mateo (County/Employer) and Deputy Sheriff’s Association (Union) effective June 15, 1999 to January 7, 2012. (Joint Exhibit (JX) 1).  John Xxxxx (Grievant) was a Correctional Officer with the County Sheriff’s Department (Department).  The County discharged him from his position on November 14, 2004 following an incident on July 6, 2004.  He appealed the dismissal.

The parties selected Karen G. Andres (Arbitrator) to serve as the neutral arbitrator of this dispute.  The matter was heard on September 28 and 29, 2005 at the County offices. A Certified Shorthand Reporter attended the hearing to record the proceedings and testimony and subsequently produced a verbatim transcript thereof.  Each party submitted a post-hearing brief completing the record herein.

II.  ISSUE

The general issue defined by the parties is as follows:

Was there just cause for Grievant’s discharge?

If not, what is the appropriate remedy?

III. RELEVANT PROVISIONS, RULES AND ORDERS

A.  MOU PROVISIONS

Section 33. Dismissal, Suspension, Reduction in Step or Demotion for Cause

The appointing authority may dismiss, suspend, reduce in step or demote any employee in the classified service provided the rules and regulations of the Civil Service Commission are followed. (JX-1, p. 28).

Section 34. Grievances describes the appeal process.


B.  CIVIL SERVICE RULES

Rule VIII

DISCIPLINARY ACTION

Section 4. Causes for Dismissal, Suspension, Reduction in Step or Demotion: 


C.  Dishonesty or any act contrary to commonly accepted standards of justice.  (JX-2).


C.  SAN MATEO COUNTY SHERIFF’S OFFICE GENERAL ORDERS

All members of the San Mateo Sheriff’s Office will, at all times, conduct themselves in a manner that is in the best interest of the San Mateo Sheriff’s Office and in accordance with the Sheriff’s Office Mission Statement.  General Order 2-01. (JX-3).

F. Employees shall not commit or attempt to commit any act which is in violation of any State, Federal, County or City law, ordinance or regulation.  Members also shall not engage in any activity or behavior which will bring discredit upon the San Mateo Sheriff’s Office.

G. When operating vehicles of any description, whether personal or county owned, members shall not violate traffic laws except in cases of absolute emergency and then only in compliance with state law and existing Sheriff’s Office General Orders/policies.

L. Employees will, at all times, conduct themselves in a manner that will not bring or discredit upon the Sheriff’s Office or subject the Sheriff’s Office, fellow employees or themselves to any criticism, disgrace or public ridicule.  Such conduct will be deemed conduct unbecoming an officer.  Application will be equal in official or private acts.

M. Employees shall not make false statements when being questioned, interviewed or in submitting written reports…

VI. FINDINGS OF FACT

After considering the testimony at hearing and recorded in the transcripts, the exhibits, and the arguments of the Union and the Employer, the following facts are determined to be relevant to the matter:

At the time of the dismissal, the Grievant had worked for the Department for over fifteen years.  He was a Corrections Officer assigned to the men’s jail.  His performance was consistently rated as meeting or exceeding the standards of the Department.  His had no record of discipline prior to the incident at issue herein. (JX-8).

On July 6, 2004, Grievant was traveling home from work north on Interstate 880 in his private vehicle, a pickup truck, when an altercation took place between the Grievant and the occupants of another car. 

Both the Grievant and the driver of the car, Raymen Manroe, testified regarding the encounter.  It is impossible to ascertain whose version of the events is the closest to the truth.  I will give the benefit of the doubt to the Grievant and rely on his account, a synopsis of which follows.

Mr. Manroe cut in front of the Grievant.  A passenger in the back seat “flipped (him) off”, and the three occupants of the vehicle yelled obscenities.  Mr. Manroe engaged in a sort of chase.  One time he sped up and got in front of the Grievant and applied his brakes so that the Grievant had to slow down.  At another time, he changed lanes and drove along side the Grievant. 

The Grievant exited the freeway.  Mr. Manroe followed him. The Grievant reentered the freeway. At some point, Mr. Manroe backed off, and the Grievant thought he had escaped the vehicle.

Mr. Manroe appeared again, and the three occupants yelled at the Grievant and gave indications that their car might hit the Grievant.  The Grievant sped up.  At times, speeds exceeded 90 miles per hour. At times, Mr. Manroe weaved in and out of traffic.

The Grievant was scared.  He feared that the occupants of the vehicle were gang members and that he was wearing provocative clothing.  His cell phone had fallen on the floor, and he could not call for help. Finally, he reached back and grabbed an unopened bottle of beer that he had purchased after leaving work.  He threw the bottle at Mr. Manroe.  He felt at the time that this was his only recourse.  Afterwards, he saw that Mr. Manroe’s face was bloody. 

Mr. Manroe dropped back several car lengths behind the Grievant.  The Grievant exited the freeway at Marina Boulevard.   Mr. Manroe’s vehicle followed him.  At one point, Mr. Manroe exited the vehicle, talked on his cell phone and yelled an obscenity at the Grievant.  During his efforts to evade Mr. Manroe, the Grievant made two illegal turns.  He finally eluded Mr. Manroe and took a circuitous route to his home.  He did not encounter Mr. Manroe and his passengers again.

In retrospect, in testimony, the Grievant acknowledged that he could have escaped the situation in ways other than throwing the bottle.  He could have gotten off the freeway to drive to the San Leandro Police Department or the Hayward Police Department.  He knew the locations of both stations.

Mr. Manroe reported the incident to law enforcement.  The California Highway Patrol (CHP) interviewed him at the hospital,  launched an investigation and generated a report.  (JX-4).  The Grievant did not report the incident to anyone at the Department or to other law enforcement. 

Six days after the incident, California Highway Patrol (CHP) officers came to see him at his place of employment.   Officer John Darling interviewed him.  He agreed to tell what happened but would not go into any details without an attorney present. He told Officer Darling that he did not throw any objects from his vehicle.

    The act of throwing the bottle is a felony under the California Vehicle Code.

  The Grievant was prosecuted and resolved the matter with a plea bargain.

On Sept. 10, 2004,

Sergeant (now Lieutenant) Marc Alcantara Internal Affairs (IA) interviewed the Grievant.  The Grievant maintained that he perceived that the only way to get away from Mr. Manroe’s vehicle and its occupants was to throw the bottle.  He stated that he regretted lying to the CHP.

The Department terminated the Grievant from his position as a Correctional Officer.  In light of his excellent work history during a long period of employment, the Department offered him a position as a Community Service Officer.  He declined the offer at the time.


VI. OPINION

Having carefully reviewed and weighed the testimony and evidence presented at the hearing, and after considering each argument raised by the parties in their briefs, the Arbitrator reaches the following conclusions:

It is a clear legal principle that law enforcement personnel are held to a higher standard than other employees, and there is a nexus between their off-duty conduct and their employment. The State Personnel Board (SPB) has repeatedly found, and the courts concur, that peace officers may be held to higher standards of conduct than non-peace officers.  (See, Jesus H. Reyes (1993) SPB Dec. No. 93-04.)  The County Sheriff’s General Orders cited herein echo this principle. 

The two incidences of off-duty behavior under examination in this case are the incident of July 6, 2004 and the lying to the CHP in the interview regarding the July 6 incident.

July 6, 2004

The Grievant admitted to throwing the glass bottle of beer at Mr. Manroe. It is unimportant to the determination of this matter exactly what injuries Mr. Manroe sustained.  What is important is that the Grievant threw the bottle. 

The Grievant exercised extremely poor judgment in attempting to resolve his predicament by throwing the bottle. He could have caused serious injury or death. 

The Grievant maintained in the I.A. interview and during much of his testimony in the hearing that the behavior of the occupants of Mr. Manroe’s vehicle caused him to fear for his safety.  He saw no other alternative than to throw the bottle.

As the Grievant finally testified when pressed, to escape the perceived dangerous situation, he could have driven to one of two police stations in the area.  He was familiar with their locations.  Alternatively, he could have pulled over to the shoulder of the freeway on one of the occasions when Mr. Manroe was ahead of him to escape the vehicle and to recover his cellular phone from the floor of the vehicle. He would have been able to call for assistance.

The Grievant worked in the County jail in direct contact with inmates. It is presumed that the population under his control is likely to test and provoke the sheriffs.  It is necessary for the sheriffs to keep a level head to avoid confrontation. 

A sheriff is in a position of power over inmates and could abuse his office if he did not have good self-control.   It is crucial that law enforcement officers maintain their professionalism in the treatment of the public both for their own and others’ safety and to avoid liability for the County.

The Grievant admitted to violating traffic laws and operating his vehicle in a dangerous manner.  He perceived an emergency under Sheriff’s General Order F.  However, as with the alternatives posed above to throwing the bottle, the Grievant could have taken a different course than driving at 90 miles per hour on the freeway.  That act was extremely dangerous and  could have resulted in injury or death.  While the illegal U turns should be discouraged, they do not cause great concern under the circumstances of the situation.

B.  Dishonesty

     The Grievant admitted to lying to the CHP.  He would have been within his rights to refuse to answer questions without the presence of an attorney.  He was not under a Lybarger admonition.  He stated that he would not go into detail without the presence of counsel.  Probably Officer Darling should have stopped the interview at that time.  The Grievant did not, however, request or demand counsel to be present before answering any questions. Instead he answered falsely.

     As set forth in David E. Gillespy (1992) SPB Dec. No. 92-08, dishonesty by law enforcement personnel has been treated with due harshness by our courts.  (See, e.g. Pauline v. Civil Service Comm. (1985) 145 Cal.App.3d 962; Warren v. State Personnel Board (1979) 94 Cal.App.3d 95.)

In Ackerman v. State Personnel Board (1983) 145 Cal.App.3d 395, the court emphasized the importance of honest reputations with respect to officers of the California Highway Patrol when it stated:

'The CHP as a law enforcement agency charged with public safety and welfare must be above reproach.' [citation]...


...CHP officers are held to the highest standard of behavior: the credibility and honesty of an officer are the essence of the function; his duties include frequent testifying in court proceedings...


...The position of a CHP officer by its nature is such that very little direct supervision over the performance can be maintained...Any breach of trust must therefore be looked upon with deep concern.  Dishonesty in such matters of public trust is intolerable.  145 Cal.App.3d at p. 399-400.


     The Grievant argues that the instance of lying to the CHP was an isolated act. According to the Court of Appeal decisions and numerous SPB decisions, dishonesty is not an isolated act; it is more a continuing character trait.  Kolender v. San Diego County Civil Service Commission (2005) 132 Cal. App. 4th 716. Gee v. State Personnel Board (1970) 5 Cal.App.3d 713, 719. 

In addition to lying to the CHP, the Grievant hid the July 6 incident and its aftermath from his employer.  A Corrections Officer should know that disclosure of these facts was expected and required. 

     Nevertheless, the cases take the position that in matters involving law enforcement personnel, even an isolated incident of dishonesty would raise serious concerns and lead to sustaining a charge of dishonesty. Kolender, supra; David E. Gillespy, supra.

Complete trust is critical to the nature of the job of a law enforcement officer.  It is unlikely the Department or fellow officers will ever be able to place their trust in the Grievant. Moreover, the Grievant’s credibility as a law enforcement officer and someone who may be called upon to give testimony in court is irreversibly damaged by his misconduct.

The conduct of the Grievant amounted to a violation of Civil Service Rule XIII Section 4C and the San Mateo County Sheriff’s Office General Orders Section 2-01 3.F., G., L., and M.

Penalty

     Because of the reasons elucidated above, the lasting harm to the public service is serious enough to merit the penalty of a dismissal. Skelly v. State Personnel Board (1975) (15 Cal.3d 194).  It is with great reluctance that I sustain the Department’s discipline. 

      The Grievant had a long history of good employee evaluations and no prior discipline.  He seems to be a diligent employee.  The Department saw fit to offer him a position as a Community Service Officer during the Skelly process. I hope that this offer will again be tendered.


__________________________________

KAREN G. ANDRES, ARBITRATOR

DATED:December 7, 2005