In a 27-page decision, Arbitrator John D. Perone ruled that the Mono County Sheriff’s Administration discriminated against Deputy Jon Madrid and exercised a “serious abuse of discretion” in their treatment of the 11-year deputy. The Arbitrator ordered Deputy Madrid re-instated with all back pay and benefits and found no misconduct on the part of Madrid.
Before the allegations that led to Deputy Madrid’s termination, he had filed a Hostile Work Environment Complaint that accused then Sheriff Rick Scholl and some of his administrators of abusive behavior. Mono County reportedly never did conclude their investigation of this complaint.
After that, the Mono Sheriff and some of his men accused Madrid of failure to report correct hours worked. This led to Madrid’s termination. He appealed, and an arbitrator has issued his opinion and award in favor of the Deputy.
The Arbitrator’s Opinion, dated February 7th, reveals the story about Deputy Madrid and how he engaged in a common practice of shift swapping with other deputies. Because salary paid did not match actual hours worked under this circumstance, deputies would send in time sheets to let the Sheriff’s Department Finance Director know to subtract some hours from their comp time off. Mono Sheriff Rick Scholl and other administration officers alleged that Madrid purposely failed to report his hours accurately and so stole ten hours which added up to $381.60.
Madrid’s attorney, Saku Ethir, presented witnesses which consistently said they too had failed to report accurate hours or their time sheets were lost in a loose delivery system. Five Deputies testified that either the Finance Director or their Supervisor let them know about problems with their time sheets, and they were corrected. No one was accused of theft of public funds. No one, except Jon Madrid.
The Arbitrator’s Opinion says that then-Lieutenant Rob Weber deemed Madrid’s behavior “attempted theft of time.” The document says an Internal Affairs Investigation went against Madrid and in a subsequent Skelly Hearing Sheriff Scholl also said Madrid attempted to steal time and money.” Madrid was terminated, pending appeal and placed on administrative leave with pay. The issue went to arbitration.
According to the Arbitrator, Sheriff Scholl, then-Undersheriff Rallph Obenberger and Lt. Weber decided to get “value for the taxpayers” by reassigning Deputy Madrid, even though on leave, to sit in a chair in the Bridgeport Sheriff’s Office lobby with no uniform, badge or gun. He could greet people when they walked in, but the Deputy could perform no other duties. This was while Madrid was on leave awaiting arbitration.
When he fell asleep in the chair at one point, Sheriff Scholl “instigated another Internal Affairs Investigation on Madrid for sleeping on the job.” The Arbitrator said he found this incredible – ordering an investigation of falling asleep, said the Arbitrator with some sarcasm, “during this stimulating duty assignment.” He called the investigation “an abuse of discretion.”
Deputy Madrid’s physician advised him to go on sick leave after more than a month of this forced sitting. Attorney Ethir said her client “couldn’t take it any more.” The Arbitrator called the forced chair-sitting “demeaning and insulting to a sworn peace officer” as did Deputies who testified.
Arbitrator Perone said Sheriff’s management “acted in a discriminatory and capricious manner which was unreasonable under the circumstances. Charges must be dismissed,” he said, “and Jon Madrid reinstated to his former position with restitution for any wages or sick leave lost.”
Asked for comment on the Arbitrator’s statement that he and other Sheriff’s management had discriminated against Deputy Jon Madrid and committed abuse of discretion, Mono Sheriff Ralph Obenberger said, “I can’t comment. This is still going on because the County still has not decided what to do.” Will they continue legal action? Sheriff Obenberger seemed unsure but said he would meet with Deputy County Counsel John Vallejo next Tuesday. He said he believes Vallejo sent a letter to Deputy Madrid’s attorney.
Deputy County Counsel Vallejo said, “The County disagrees with the Arbitrator’s opinion and is considering all of its options moving forward.” Attorney Ethir added that Sheriff Scholl had testified that he got the idea of assigning Deputy Madrid to sitting in a chair all day from the former Sheriff who had used that technique for “punishment purposes.” Ethir said, “We are evaluating a lawsuit against Mono County because of Deputy Madrid’s treatment. He was guilty of nothing. What they did,” she said, “it shocks the conscience.” Ethir said she believes Sheriff’s management cooked up the time theft charge as retaliation for Madrid’s Hostile Work Environment Complaint.”
(Following is entire content of Arbitrator’s Opinion and Award. The actual opinion and award start on page 24.)
IN APPEAL HEARING PROCEEDINGS IN ACCORDANCE WITH MONO COUNTY AND THE MONO COUNTY SHERIFF’S DEPARTMENT AND POLICY PROCEDURE
In the Matter of a Dispute -between-
County of Mono, California and its Sheriff’s Department vs. Deputy Sheriff Jonathan Madrid
Subject of Appeal: Disciplinary Termination
Arbitrator’s Opinion and Award
This hearing arises pursuant to the Mono County Code and the Mono County Sheriff’s Department policy and procedure; hereinafter, County or Department, and the Appellant. Under the controlling language in the Mono County Code, appeals for disciplinary action normally are conducted by a three-person personnel board. In this case the parties jointly requested the undersigned Arbitrator conduct the hearing as a one-person personnel board. It is also relevant to note the same Mono Code requires that at the conclusion of the hearing, the Personnel Board Body (Arbitrator) is governed by a standard of proof equivalent to the preponderance of evidence. The relevant code section states the Board/Arbitrator may sustain the final disciplinary order modified, in whole or in part, or order reinstatement of the employee.
The essence of this appeal is to dispute the charges which allege intentional failure of the Appellant to submit proper payroll forms which resulted in the Appellant’s being overpaid on three occasions, for a total of ten hours pay or $381.60.
The Department conducted an internal affairs review and after Sheriff Scholl held a “Skelly hearing”, concluded that the Appellant was dishonest in accounting for his time and should be terminated.
The Undersigned accepted the case and conducted a full evidentiary hearing on Saturday, September 29; Sunday, September 30, and Monday, October 1, 2012 in the County’s offices in Mammoth Lakes, California. The witnesses testified under oath administered by the Arbitrator and Counsel for the parties were then allowed to submit exhibits and to examine and cross-examine witnesses. A tape recording was made of the proceedings and eventually transcribed under the direction of Counsel for the Appellant’s Law Office. This award is now issued in order to settle the matter.
REPRESENTING THE PARTIES
Representing the County
Mr. John-Carl Vallejo, Esq. Deputy County Counsel 452 Old Mammoth Road Ste 308 Mammoth Lakes, CA 93546
Representing the Appellant
Ms. Saku E. Ethir, Esq. Attorney at Law Lackie, Dammeier, McGill & Ethir, APC
367 North Second Avenue Upland, CA 91786
The parties were able to agree that the Issues statement before the Arbitrator is as follows:
1. Was there just cause for the termination of Deputy Jon Madrid?
2. If not, what is the appropriate remedy?
BACKGROUND AND MATERIAL FACTS
The Appellant was hired by the Department as a Deputy Sheriff in October 12, 2001 and placed on disciplinary leave as of November 7, 2011. The pertinent procedures provide, the
Appellant was placed on paid administrative leave until his appeal is heard and charges sustained or not.
Over the approximately eleven years of service to the County, the record reflects abundant commendations from citizens and supervisors lauding the Grievant’s satisfactory work performance and ethic. Also, Appellant’s Personnel Evaluations show a consistent need for improvement in the area of judgment, but overall satisfactory job performance. The record also reflects this lack of judgement resulted in charges of misconduct and disciplinary action including two suspensions without pay.
Events pivotal to the cause of this action occurred in February and March 2011. The charges concern the Appellant’s reporting of his time during three “work shift swaps” between the Appellant and two other deputies. The standard work shift
for a Sheriff’s Deputy is ten hours. During the February-March 2011 time frame the Department only scheduled patrol duties between 6 am and midnight for a total of eighteen hours per day: 6:00 a.m. to 12:00 a.m. As a result, the morning and afternoon shifts overlap by four hours. In a shift swap, one deputy is scheduled for one shift, but then also covers the second shift in these shift swaps for a colleague on the same day. Therefore, each deputy is on the schedule for twenty hours worth of shifts during the swap, but only actually works sixteen hours per day. Because of the four-hour discrepancy, when a Patrol Deputy works two shifts in one day, the four hours not actually worked (but paid) must be accounted for on a time-off slip. In this instance, when the Appellant and Deputy Peek requested a swap, their agreed-upon exchange of shifts on February 12, 2011, the request was approved on January 21, 2011. The two deputies agreed to each submit a request for CTO payment for the two hours they would be compensated but for which they did not work. The Department received Deputy Peek’s compensatory time-off slips, but did not receive a slip to account for the Appellant’s two hours that day.
The Appellant also traded shifts with Deputy Scott Minder on February 26, 2011, which was approved on February 25, 2011. Appellant agreed he would turn in the slip for all four hours of time off, thus relieving Minder of responsibility of turning
in a time off slip. The Appellant again did not submit request- for-time-off paperwork for the trade, but he signed the February-March time sheets testifying that it was true and correct to the best of his knowledge, even though the time sheet did not account for the four hours compensatory time off on February 26, 2011.
Then Appellant’s request to again swap with Deputy Minder for March 26, 2011, was approved. Once again, the County did not receive time-off paperwork for the trade. It is relevant that Appellant again agreed to use his CTO for all eight of the hours in both shifts relieving Deputy Minder of any need to use CTO time off for the four hour shift. The Appellant’s request for compensatory time-off paperwork for March 26, 2011 was not received and the Appellant’s time sheet did not account for the four hours of compensatory time off he was to have taken. Lieutenant Robert Weber suspected Appellant’s failure to turn in the time-off slips and his certification of the related time sheets failing to account for the ten hours of time off was an attempted theft of time, and he requested an Internal Affairs Investigation be initiated.
The results of the Internal Affairs Investigation determined Appellant’s failure to submit the proper time-off slips to be indicative of his insubordination, and a prima facie case of theft of public funds.
The charges were sustained and Appellant was issued a Notice of Proposed Disciplinary Action. He was provided a Skelly hearing with the Sheriff, who testified during that hearing that Appellant retorted he does not scrutinize his time sheets when he signs them. After review of the Appellant’s employment history and the Skelly hearing, Sheriff Scholl determined Appellant intentionally failed to submit the proper forms, attempting to steal three hundred eighty-one dollars and sixty cents worth of overtime (10 hours x $38.16 per hour, i.e. $381.60).
Management was convinced the motive to steal time was a result of Appellant’s experiencing financial hardships because of his divorce during 2008 and 2009. The divorce led to a fifty percent (50%) garnishment of Appellant’s paycheck to his wife and children who had moved to Ventura. Management, after considering Appellant’s relationship with his fiancee in Bakersfield requiring subsequent travel costs to visit them multiple times per month, added motivation to steal. Management was also aware Appellant had been suspended for reporting ready for duty, when in fact he was actually still in his civilian clothes, driving back from visiting with his fiancee in Bakersfield.
Ultimately Appellant was placed on administrative leave with pay by the Sheriff, effective November 7, 2011. In April,
2012, realizing the Personnel Board hearing would not be held in the near future, according to his testimony, the Sheriff, with concern for the fact that taxpayers were compensating the Appellant approximately seven thousand dollars per month
($7,000) in wages and benefits, he would try to get value for the taxpayers by reassigning the Appellant to some type of work. As he testified, the Sheriff was concerned about his inability to trust the Appellant and eventually he, Undersheriff Obenberger and Lieutenant Weber decided Appellant should be placed in the reception area at the Bridgeport office.
On May 12, 2012, Appellant did report, as ordered, in civilian clothes, without his gun and badge, and ordered to sit in the reception area, greet visitors, and once he determined their needs, to contact the appropriate Department personnel to report to and help the visitor. It was clear the Appellant was not to actually perform any services in helping the visitor, but merely to refer the visitor to someone else in the Office for help.
It is also relevant that while the Appellant was at that post, he was seen by two Sheriff’s administrators visiting from another county, sleeping in his chair. Sheriff Scholl instigated another Internal Affairs Investigation on the Appellant for sleeping on the job.
This assignment continued until June 29, 2012 when Appellant’s doctor advised him to stop working and he went on
sick leave, where he remained during the time of this hearing.
POSITION OF THE PARTIES Position of the Department
Counsel for the Department’s closing argument brief summarizes the reason for the cause of this action. He maintains after years of the Department giving Deputy Jonathan Madrid the benefit of the doubt for his lack of good judgment and improper actions, Appellant attempted to steal $381.60 worth of overtime from the Department, leading the Sheriff to dismiss Madrid from his employment with the County.
Counsel notes prior to the underlying disciplinary action, Appellant was twice suspended, once for knowingly and
improperly making personal use of a Department cell phone, and once for reporting that he was on duty when he was actually in his civilian clothes traveling to work. Counsel notes the Department’s original belief that Appellant’s actions were merely the result of a long history of poor judgment and could be improved until the attempted theft of time off crystallized the Department’s conclusion that Madrid’s actions were not merely the result of poor judgment, but were noted as lack of honesty and integrity. This conclusion was the foundation that led to the Sheriff’s decision to dismiss Appellant from
employment. Counsel maintains this is strong foundation upon which the Sheriff’s decision should be upheld.
Counsel’s brief notes this hearing is being conducted pursuant to Mono County Code which provides the Personnel Appeals Board (the Arbitrator in this case) is to determine whether the decision to dismiss Appellant from employment will be upheld, modified or dismissed, based upon the relevant facts presented at the hearing. Counsel for the Department maintains that because Appellant remains an employee unless and until the final disciplinary action is upheld or dismissed, no issue of back pay, or “Skelly” violation is properly addressed in the appeal.
Counsel provides an interpretation of County Code Section 2.68.303 which maintains disciplinary action may be sustained if it is more likely than not that the employee engaged in the conduct of which he is accused.
Counsel for the Employer then provides acknowledgment that at the hearing the parties agreed the issue statement applicable in this case is as follows.
(1) Was there just cause for the termination of Deputy Jonathan Madrid?
(2) If not, what is the appropriate remedy?
Counsel’s brief then also provides a rendition of the facts of the case, particularly Appellant’s prior employment issues, including two suspensions, one in 2008, for improper
use of Department cell phone and one in 2011, immediately prior to his alleged false verification of his time sheets. Appellant was disciplined in 2011 for calling in 10-8 “Deputy is on duty” when he was actually in civilian clothing on the way back to work from Bakersfield, not ready to carry out his duties as a peace officer.
Counsel notes the Department’s long history of taking care of its deputies. Lt. Weber became personal friends with the Appellant, and at one time temporarily allowed Appellant to live in his home rent-free. Weber also selected Appellant to be promoted into the MONET team and there were issued a number of administrative commendations submitted into evidence for positive aspects of Appellant’s work.
Counsel provides the underlying conditions resulting in this discipline and describes work shifts and swaps, and the basic causes of this action – dishonesty in reporting time. Counsel notes time-off slips, the form Appellant is accused of failing to complete on the three dates in question. The record reflects that Ms. Lynetta Fuerst, the Department Finance Officer, typically called a deputy when she saw a time-off slip was missing and the deputy did not request time off. Fuerst also would contact a supervisor when the schedule did not reflect a request for time off.
Counsel’s brief then reports on the details of Appellant’s alleged lack of documentation for time paid on February 12, 2011; February 26, 2011; March 26, 2011. When Lieutenant Weber became suspicious of the reasons for Appellant’s failure to turn in time-off slips, he requested an Internal Affairs investigation. The Internal Affairs Investigation resulted in a conclusion that Appellant had been insubordinate in failing to submit the proper forms and provided a prima facie case for theft of public funds. His agreement with that conclusion lead Sheriff Scholl to implement the instant disciplinary action of termination.
Counsel reviews the Department’s conclusions with regard to motivation for Appellant to attempt the theft of time- garnished wages and extensive travel expenses between child visitation in Venture, and his relationship with his fiancee in Bakersfield multiple times per month. Counsel maintains these life changes and financial hardship led to, among other things, dishonesty in the submission of payroll forms to steal time.
Counsel maintains the facts prove it is more likely than not that Appellant falsely certified the accuracy of his time sheets, knowing they did not reflect the time-off hours in question. Counsel provides the Department’s rationale to conclude Appellant’s suggestion that the time-off slips were lost in the Department mail is not believable. Unbelievable
because the forms would have had to have been lost or misplaced by County staff in two consecutive months for three separate days swapped. Counsel further notes the Appellant noticed a seven dollar and fifty cents ($7.50) discrepancy in his pay, but did not notice that he failed to claim ten hours of time off for which he did not work but was being paid.
Counsel maintains Appellant’s likely defense that Ms. Fuerst failed to contact Appellant about the missing slip is irrelevant due to the fact that it was Appellant’s ultimate responsibility to certify the time sheets as being true and correct. Counsel proposes Appellant’s cross-examination testimony exposed his lack of credibility in denying the charge.
Counsel classifies as irrelevant Appellant’s accusations regarding alleged Departmental misconduct to the facts surrounding his alleged attempted theft. Counsel also suggests evidence submitted with regard to the actions with the long- retired County Undersheriff, is also irrelevant to the question of whether or not Appellant stole the ten hours of compensatory time off and should be dismissed from employment.
Counsel’s brief next reviews the Sheriff’s thinking in concluding the Appellant should be terminated as fair and appropriate. Counsel also provides citation of law and hearing
decisions for the Arbitrator to review in contemplating the facts of this case.
In conclusion, the position of the Department renews his argument that the evidence proves it is more likely than not that at the time Appellant certified his time sheets he was aware they did not account for ten time-off hours that he was responsible for claiming. Counsel maintains Appellant’s attempts to raise doubts, such as the forms were lost in the mail, and alleged Department Administration misconduct are irrelevant and transparent attempts to direct from the real issues of his financial troubles and previous disciplinary actions involving acts of dishonesty and insubordination all point to the most likely scenario: Appellant attempted to steal approximately four hundred dollars ($400) worth of time off and got caught.
In light of the above, the Department respectfully requests that the Arbitrator uphold the final disciplinary action of termination in its entirety. Position of the Appellant
It was the position of Counsel for the Appellant in her closing argument brief, in essence, that the evidence will not support a finding that the Department met its burden of persuasion to prove the charges and ultimately that the penalty of termination was neither just nor proper.
Counsel reviews the eleven-year history of the Appellant as a Deputy Sheriff with the Department, his previous experience in the Marine Corps, and service to the Mono County Sheriff’s Department as an Field Training Officer (FTO), Explosives Investigator, Snowmobile Instructor, the Department’s Honor Guard and HazMat team, and a member of the MONET. Counsel classifies as stellar Appellant’s work with the Department.
Counsel’s brief then reviews the burden of proof applicable herein, including citation, in order to show that Department failed to prove, by the resident required preponderance of the evidence, the charges of dishonesty against the Appellant. Counsel maintains the Department also failed to prove the discipline imposed against Madrid was appropriate in any respect.
Counsel reviews the elements of just cause by the commonly accepted seven tests to be applied in determining just and proper cause for discipline. Counsel then reviews the background of the Department’s requirements regarding time-off slips and other forms required in Deputy shift swaps. Counsel recounts the three instances of Appellant swapping shifts with other Deputies and asserts Appellant’s belief that he had turned in the appropriate paperwork and time-off slips.
Counsel reviews the procedures for processing time cards, including obtaining the signature of the individual deputies and their supervisors. After signatures, the time keeping forms are processed through the system for review and verification of accuracy and, finally, to the Lieutenant, and Undersheriff for verification as to accuracy.
Counsel for the Appellant then summarizes the testimony of the witnesses at the hearing as follows:
Lieutenant Robert Weber confirmed the mail transportation and delivery process and system from the substation and Bridgeport described by Appellant’s witness. Counsel notes the
majority of Weber’s testimony on prior incidents of alleged poor judgement were not a part of the charges in the present case. Weber’s testimony found Appellant’s financial issues to be his motivation to steal.
Undersheriff Ralph Obenberger’s testimony was summarized as very similar to that of Lt. Weber and included the testimony that Obenberger determined Appellant was not honest with his wife when Appellant had an affair. Counsel notes Obenberger admitted he himself also experienced an affair while married to his wife. Obenberger testified as to the Appellant’s “chair” assignment and a Hostile Work Environment claim Appellant filed against the Department.
As with the previous two witnesses, Sheriff Richard Scholl’s testimony was reviewed quite critically by Counsel for the Appellant about incidents years ago and not charged in this case. Scholl was noted as authorizing an Internal Affairs Investigation to be opened when Appellant fell asleep in his chair.
Deputy Peter DeGeorge, a Mono County Sheriff Deputy, was noted by Counsel to have testified in detail as to a loose system of Deputies leaving mail in their police car, and handing off mail from Deputy to Deputy from Crowley and June Lake Substation to Bridgeport. Counsel reviews this witness’ testimony that Lt. O’Hare on two occasions warned that O’Hara wanted Appellant terminated. DeGeorge testified his wife heard O’Harestate, “Let’s go fuck with somebody. Lets go fuck with Madrid.”
Christina DeGeorge, Emergency Preparedness Coordinator for the County Health Department, confirmed the testimony of her husband and that she heard O’Hara say at two County meetings, one year apart, that he wanted to fire Deputies Weber, Madrid and DeGeorge (her husband).
Deputy Mark Hanson’s testimony was reviewed as he described the mail system previously related herein. Most significantly, Counsel notes this witness took time off more than once when he failed to submit a time off form but had
received verbal back-up from Fuerst and then from Kim Bunn, Fuerst’s retirement replacement, who sent the witness e-mails questioning missing forms in the pay roll system.
Sergeant Timothy Minder’s testimony was reviewed as similar to other witnesses on the mail system. Most significantly Minder testified that as Sergeant, he’d had a number of deputies fail to submit time off forms but he corrected his deputies mistakes and when he himself had forgotten to submit time off forms he was alerted by Finance to correct his submission of the proper forms. But none of them were accused of dishonesty or disciplined.
Deputy Brandy Peek also testified as to a loose mail delivery system, and how over the years he too had failed to remember to submit time off request slips but was always reminded by Fuerst and later by Bunn to fill out the forms.
Deputy David Brown testified as to a loose mail delivery system including grabbing “a handful of mail and delivering it to Bridgeport” as was his practice.
Counsel next notes Ventura Police Officer Matthew Baumann’s testimony as to his experience as a Mono County Sheriff Deputy, from August, 2005 through May 20, 2012 and his friendship with Appellant. The loose mail system of Mono County was testified to by Baumann and how at times he too forgot to submit time off slips but was reminded by the Finance
Officer. The witness noted that sometimes he had submitted the forms in proper order but they were not received. He made it a practice to keep copies of his submissions in case the forms did not make it to Finance.
Lynetta Fuerst’s testimony was reviewed as Finance Officer for the Department from June, 2007 through May, 2011. Fuerst
provided testimony, Counsel notes, which requires a Supervisor’s signature for approval of time off during shift swaps and if the proper forms don’t come in she would contact the Deputy and/or the Deputy’s Supervisor so the proper form would be submitted. Counsel notes that besides Fuerst, Undersheriff Obenberger and Sheriff Scholl were responsible to verify the accuracy of payroll sheets and forms.
The testimony of Deputy Jonathan Madrid, the Appellant, was highlighted in the brief by Counsel in which Appellant reviewed the mail delivery system and his acknowledgment that he was aware of the proper forms to complete in a shift swap. And his belief he did file the proper forms for the 10 hours in question but did not check his own time sheets.
Counsel reviews Appellant’s filing of an Hostile Work Environment Complaint against Lieutenant Weber, Sergeant Beard and Lieutenant O’Hare; his Notice of Termination; placement on leave; orders back to work and assignment to the “chair”. Appellant told how he felt intimidated, and harassed but stayed
there until his doctor advised him to take sick leave time off. Counsel for the Appellant reviews the post-termination
history of this case, with regard to Appellant being ordered to return to work in May 2012, and subjected to intimidation, harassment, duress, and violation of the Police Officer Bill of Rights, (P.O.B.R.). Counsel asserts Appellant’s placement at the front lobby, unarmed and with access to the public, is a blatant safety violation of the P.O.B.R. when the Department
placed Appellant in harm’s way as continued harassment and intimidation. Counsel also notes felony suspects were brought through the lobby past Appellant’s chair, unhand cuffed. Counsel also notes the Government Code Section 3303 forbids temporary reassignment, vacation or duty, to a location or duty to work for an officer, that a sworn member of his or her Department would not normally be sent to, or who would not normally be given that duty assignment under similar circumstances. Counsel notes there was only one other deputy placed in the “chair” assignment, under a previous Sheriff, which was for punishment purposes.
Counsel maintains the testimonial evidence provides clear proof that other deputies acknowledged to failing to submit proper forms, but were generally notified by their Supervisor or the Finance Department that a form was missing. Counsel notes, in no case were these other employees investigated for
misconduct or subjected to disciplinary action because of their actions as was the Appellant. This argument and evidence otherwise covered in her brief is maintained by Counsel for the Appellant to have proved Appellant was the victim of disparate and discriminatory treatment.
Counsel maintains the Department’s allegation that Appellant violated a penal code section is irrelevant, in light of the Labor Code Section 432.7 which provides that if there is no arrest or conviction, it is a violation for Penal Code
sections to be utilized for employment disciplinary purposes. Counsel then expands on her argument to propose the
Department failed to meet its burden of persuasion to prove by a preponderance of the evidence that Appellant purposefully failed to submit the required time-off request slips and request for exchange days off related to the ten hours of unaccounted time. Rather, Counsel argues the evidence disclosed that there were flaws in the mail transportation system and there was shown in evidence the potential for mail to go missing. Counsel maintains that even if the Appellant did fail to submit the required forms, rather than their being lost in the loose mail system, his actions were unintentional, not intentional as charged. Counsel argues that to remain consistent with Department practices for other employees, rather than being terminated, Appellant should have been
assisted through notification by either Supervision and/or Finance Department that the proper forms were not in.
Accordingly, Counsel notes that Ms. Fuerst testified to the effect that it was not uncommon for her to discover errors in payroll time sheets, before and after they had been signed by deputies. Fuerst testified that in cases such as that, she would correct the time sheet and reissue it for the deputy’s signature.
Counsel maintains that even if the Arbitrator finds the investigations were credible and legitimate with the burden of proof satisfied, the mitigating facts and circumstances clearly point to a finding that termination was excessive and not supported by the evidence.
Counsel also maintains the Appellant’s prior disciplinary record, the length and quality of the Appellant’s employment history, are all factors to be considered when determining the level of discipline. As for progressive discipline, Counsel asserts there were no prior instances of similar violations where the Appellant was already placed on notice so that future violations would result in greater discipline, so no progressive discipline was applicable.
As for the Appellant’s prior disciplinary record, Counsel argues that the previous disciplinary actions taken against Appellant relating to reporting to duty, but unprepared to
begin work, and improper use of a Department cell phone etc., do not allow a leap from minor levels of discipline to termination of employment. Counsel maintains that the Appellant’s eleven-plus years of service reflect many commendations with more recent minor offenses, mitigate any of its mistakes.
In conclusion, Appellant’s Counsel argues that termination is not justified, based on the Department’s own investigation, the testimony of witnesses at the hearing, and the exhibits introduced at the hearing. Counsel argues the action in this case set at termination is excessive.
As remedy, Counsel for the Appellant asks the Arbitrator for a finding that the Department failed to meet its burden as to each allegation, and if certain of the allegations are sustained that the ruling be that termination is excessive based on the evidence before the Arbitrator. Counsel finally
maintains the discipline should be set aside and Appellant reinstated to his position as a Sheriff’s Deputy with full reimbursement of back pay and benefits for his wrongful termination.
RELEVANT MONO COUNTY CODE AND SHERIFF DEPARTMENT POLICY AND PROCEDURE
Performance. Section: 340.3.(c): Unsatisfactory work performance
including, but not limited to, failure, incompetence,
inefficiency or delay in performing and/or carrying out proper orders, work assignments or instructions of
supervisors without reasonable and bona fide excuse.
Section: 340.3.(e): Disobedience or insubordination to constituted authorities, including refusal or deliberate failure to carry out or follow lawful directives and orders from any supervisor or person in a position of authority.
Section 340.3.(i): The falsification of any work-related records, the making of misleading entries or statements with the intent to deceive, or the willful and unauthorized destruction and/or mutilation of any department record, book, paper or document.
Section: 340.3.(m): Any knowing or negligent violation of provisions of the department manual, operating procedures or
other written directive of an authorized supervisor. The department shall make this manual available to all employees. Employees shall familiarize themselves with this manual and be responsible for compliance with each of the
policies contained herein. Section: 340.3.(n): Work-related dishonesty, including attempted or actual theft of department property, services or the property of others, or the unauthorized removal or
possession of department property or the property of another person.
Section: 340.3.(o): Criminal, dishonest, infamous or disgraceful conduct adversely affecting the employee/employer relationship, whether on-or-off duty.
Section 340.3.(p): Failure to disclose or misrepresenting material facts, or the making of any false or misleading statement on any application, examination form, or other
official document, report or form or during the course of any work-related investigation.
Section: 340.3. (t): Misappropriation or misuse of public funds.
Section: 340.3.(ab): Any failure or refusal of an employee to properly perform the function and duties of an assigned
Section: 340.3.(ad): Giving false or misleading statements, or misrepresenting or omitting material information to a supervisor, or other person in a position of authority, in connection with any investigation or in the reporting of any department-related business.
MONO COUNTY CODE
Code 2.68.230(2): Incompetence or inefficiency (herein defined to include, but not limited to, any neglect of duty and/or failure to meet reasonable work performance standards and requirements).
Code 2.68.230(3): Inexcusable neglect of duty.
Code 2.68.230(4): Insubordination which herein defined to include, but not limited to, the refusal or willful failure to follow a reasonable order of a superior; and the willful failure or refusal to perform a particular duty, function or responsibility required by the position of employment.
Code 2.68.230(5): Dishonesty which is, defined herein to include, but not limited to, any unauthorized possession or use of property not belonging to the employee, which unauthorized use or possession arises out of, or is in any way related to the position of employment held by the employee.
ARBITRATOR’S FINDINGS AND CONCLUSIONS
After review of the complete record of this case, including testimony and exhibit provided at the time of hearing, transcripts of the proceedings, and closing argument briefs, the Arbitrator finds that the Department was unable to carry its burden to show, by a preponderance of the evidence, that Appellant intentionally failed to submit documentation during the shift swaps. Furthermore, it is found that Management acted in a discriminatory and capricious manner which was unreasonable under
the circumstances. The charges must be dismissed, and the Appellant reinstated to his former position, with restitution for any wages or sick leave he has lost.
The Department’s finding that motivation occurred to cause Appellant to attempt to steal three hundred eighty-one dollars and sixty cents ($381.60) worth of time from the County lacks convincing evidence. Particularly the testimony of other deputy sheriffs reflects that during shift swap events, it is not uncommon for deputies or their supervisors to miss submitting the proper forms. In those cases in the past, either the supervisor or the Finance Director would notify the employee of the need to submit the proper forms. Such was not done in the case of the Appellant, while the help was common for other deputies to receive. Considering the lack of notification from the Administration, and the Grievant had over two hundred hours of compensatory time off to draw from, in order to account for the ten hours paid but not worked during the shift swap, dishonesty was not proven to the satisfaction of the undersigned neutral.
Additionally, the Arbitrator finds the Administration exercised a serious abuse of discretion when, after Appellant’s being off work for approximately six months, on paid administrative leave, he was called back to sit in a chair in the Bridgeport main office of the County Sheriff, to perform perfunctory and meaningless duties. Deputy Sheriff witnesses and
the undersigned Arbitrator found this practice demeaning and insulting to a sworn peace officer. Officer Baumann summed it up best when he opined that all the Administration had left to do to finish the punishment was place a dunce cap on the Appellant while he was sitting in his chair.
Additionally, the Undersigned found it incredible when Grievant fell asleep in his chair (during this stimulating duty assignment), Department administrators recommending this disciplinary action actually began a second Internal Affairs investigation with regard to his falling asleep in the chair. The above actions are not considered reasonable, and therefore represent an abuse of discretion.
Appellant will be ordered reinstated to his former position and reimbursed for any sick leave or other unpaid leave he experienced from the time of termination until the time of his reinstatement. Furthermore, it will be ordered that the Appellant’s personnel file be expunged of this disciplinary action, as allowed by law.
The charges against Jon Madrid have not been proven by a preponderance of evidence and, therefore, Just Cause for his
termination from employment does not exist. The charges are dismissed. As remedy, the Appellant is ordered to be reinstated to his former employment status as a Deputy Sheriff with full reimbursement for any lost seniority, wages or benefits used.
The undersigned retains jurisdiction in this matter for 90 days from the date of this report, in order to assist in interpretation or implementation of this remedy.
February 7, 2013
John D. Perone