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RECEIVED

In the Matter of Arbitration Between SPP 25 2015

Wmteiliaiier&Dianiond
King County Police Officers Guild,
(Guild),

and OPINION AND AWARD

Alexander Grievance
ICng County Sheriffs Office,
(County, Employer, or KCSO)

Before: David W. Stiteler, Arbitrator

Appearances: For the Guild:


Derrick Isackson
Attorney at Law
Vick, Julius, McClure
5701 6th Avenue S., Suite 491 - A
Seattle, WA 98108

For the County:


Steven Winterbauer
Attorney at Law
Winterbauer & Diamond
1200 Fifth Avenue, Suite 1700
Seattle, WA 98101

Hearing Location: Seattle, Washington

Hearing Date: Junes & 4, 2015

Record Closed: August 25, 2015

Opinion & Award Issued; September 25, 2015

KCPOG and King County Sheriff's Office


Alexander Grievance
1
OPINION

L Introduction

The Employer discharged Andrea Alexander (Grievant) from her position as a


sergeant. The Guild filed a grievance, alleging that there was not just cause for
discharge. The parties were unable to resolve the dispute and selected me as their
arbitrator.

At the hearing, the parties agreed that the grievance was properly before me for
resolution. They also agreed that I could retain jurisdiction for 90 days following the
decision to resolve remedial disputes, if any. They each had the full opportunity to
present documentary evidence, examine and cross-examine witnesses, and argue their
positions.
After presenting their evidence, the parties waived oral closing argument in
favor of post-hearing briefs. I closed the hearing record on receiving their briefs.
II. Issue

The parties agreed that the issue is whether the County had just cause to
discharge Grievant, and if not, what is the appropriate remedy?
III. Relevant Fact Summary'

KCSO provides law enforcement for the County, several contract cities, and
other entities. It has about 1,100 employees, over half of whom are commissioned
law enforcement officers. The Guild represents KCSO's commissioned employees.
Grievant started working for KCSO in 1987. During her tenure, she worked in
various precincts and positions, including field training officer(FTC) and master
police officer (MPG). She was assigned for a time to the special assault unit. She was
promoted to patrol sergeant in 2004. Over her career, her performance evaluations
were satisfactory or better.

' Other facts, as necessary, are set forth in the Discussion.


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Alexander Grievance
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In 2006, Grievant was assigned as an FTO sergeant. The FTO program was the
field training program for new officer recruits/trainees. When she started as an FTO
sergeant, it was a full-time position. It became an ancillary duty in 2010 when KCSO
restructured the FTO program (and renamed it to patrol training officer (PTO)).
Sgt. Stanley Seo is, and was during the relevant time, the field operations
coordinator for KCSO. In that role, he administers the PTO program.
Major Jerrell Wills is, and was during the relevant period, a precinct
commander. As part of his job, he oversaw the PTO program, and Seo reported to
him. He had the authority to remove PTO sergeants and PTOs from those positions.
According to Wills, Grievant did a good job as a PTO sergeant.
Daniel Pingrey is, and was during the relevant time, the chief of patrol
operations. Wills reported to him, and he had the overall responsibility for the PTO
program.

PTO sergeants play a role in determining whether a trainee passes the program.
They work closely "with the PTOs, who work with the trainees in the field. PTOs
measure a trainee's performance against 15 core competencies, including ethics.
As an ancillary duty, a sergeant assigned as a PTO sergeant still has the typical
sergeant duties, and must perform the PTO sergeant duties as an add-on to their
normal responsibilities.
Officers and sergeants in the PTO program receive a premium for the PTO-
related duties. The PTO premium is shown as a separate line item on the individual's
paystub. For a variety of reasons, pay wall vary from paycheck to paycheck,
sometimes significantly.^
Because of budget problems, there was a period from 2010 to sometime in
2012 when KCSO was not adding new trainees. Some trainees already in the
program were laid off. During the period when there were no trainees in the program.

^ For example, over the period from April 2012 to January 2013, Grievant's take-home pay as
shown on her pay stubs ranged from a high of $4,712 to a low of $3,226.
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Alexander Grievance
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the Employer continued to pay PTOs and PTO sergeants the premium, even though
they were not performing PTO-related duties.
When Pingrey became chief of patrol operations, he heard about some
disciplinary issues involving Grievant. He directed Wills to look into the issues and
decide if a disciplinarv board was needed.
After looking into the issues. Wills initiated action that led ultimately to the
removal of Grievant from the PTO sergeant position. He acted based on concerns
about her judgment following two internal affairs (IIU) investigations. Though the
details of those investigations are not at issue here, Wills and Pingrey believed that
the sustained allegations against Grievant raised questions about whether she could
be a good role model for recruits in the PTO program.
The KCSO policy for removal from the PTO program provides, in part, that
"Discipline with time off shall be grounds for immediate removal from the Field
Training Program as an FTO, MPO,or FTO Sergeant, for no less than one year." The
earlier of the IIU investigations of Grievant had resulted in her receiving a three-day
suspension without pay.^
In April 2012, Wills met with Grievant to give her a memorandum
documenting the removal and discuss the reasons for it. He told her the removal was
based on the policy, not on her performance. Grievant indicated her belief that, based
on the policy, the removal was invalid because the IIU that involved time-off
discipline dated back to 2010. Wills told her he would look into her complaint, but
did not rescind the removal order.

After that meeting, Grievant did not perform the PTO sergeant duties.
However, based on what Wills said, she believed that the removal decision was not

necessarily final.

^ As Pingrey and Wills interpret the policy, however, it is not necessary that an individual be
subject to time-off discipline to be removed from a PTO position.
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Alexander Grievance
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Wills did not follow up on the issues Grievant raised at the meeting. She did
not contact him again about those issues.
When a KCSO supervisor takes an action that affects an individual's pay,
status, or assignment, the supervisor is supposed to notify HR, which creates a
personnel order to reflect the change. Wills did not notify HR about removing
Grievant from the PTO sergeant position. As a result, there was no personnel order to
remove the PTO premium from Grievant's pay, and she continued to receive it.'^
In 2010 or 2011, KCSO changed from a precinct model to a zone model. That
change took some time to fully implement. In April 2012, KCSO issued zone
deployment orders related to the change. One consequence was going to be a
reduction in the number of PTO sergeants from three to two. Grievant was the most
senior of the three PTO sergeants at that time. This change basically coincided with
Wills' decision to remove Grievant as PTO sergeant for the IIU issues.
Because she had not heard from Wills about the issues she raised regarding her
removal, Grievant contacted Patty Shelledy on June 26, 2012, for her opinion.
Shelledy is a KCSO legal advisor. When Shelledy had not responded by late July,
Grievant contacted her again. Shelledy replied on July 25, explaining that she did not
have enough information to provide a definite answer, and advising Grievant to
pursue the issue through the Guild. Grievant did not advise Shelledy that she was still
receiving the PTO premium.
Also in July 2012, Wills noticed that Grievant's email signature still included
her former title as a PTO sergeant. He contacted her and advised her to update it.
Grievant had not changed the signature line because she believed the issue of her
status was unresolved; she changed it after Wills' email.
Grievant discussed the removal matter with Guild representative Steve Eggert,
who told her he would talk to Wills. She did not mention that she was getting the
PTO premium. Eggert apparently did not contact Wills and did not follow up with

Wills testified that he was not disciplined for his failure to initiate the required paperwork.
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Grievant.^ She did not file a grievance on the matter or otherwise pursue it after that
point.
Much of the day-to-day responsibility for implementing the change from
precincts to zones during this period fell on sergeants. There were issues with
department computers and dispatch. There were also personnel changes and changes
in supervision. In addition, Grievant was dealing with significant issues in her
personal life. The combination of work and personal issues put the removal matter in
the back of her mind.

Sheriff John Urquhart was elected after the change in organizational structure.
For reasons not relevant here, he decided to revert to the precinct model in 2013.
In connection with other personnel shifts related to the reversion, Wills
decided to reinstate Grievant as a PTO sergeant. Because of Seo's responsibility for
the PTO program, he talked to Grievant to see if she was interested.
Grievant told him she wanted to return to the position, so Seo contacted the
KCSO personnel office to have the PTO premium added back to Grievant's pay.
Personnel told him that she was already receiving the PTO premium, that there had
not been a personnel order changing Grievant's pay in 2012. Because Seo knew that
she had been removed from the PTO sergeant position in 2012, he called Grievant to
find out what was going on.
Grievant acknowledged to Seo that she was still getting the premium. Seo
recalls her saving that it was not her responsibilitv to adjust the pay, that it was up to
command staff to take care of that. He advised her that he would have to report the
issue to Captain Baxter, and that Personnel was going to want her to repay the
premium amounts that she should not have been getting. He reported the issue to
Baxter, but did not investigate why no personnel orders had been issued to change
Grievant's pay when she was removed as PTO sergeant.

^ Eggeri apparently was aware that Wills intended to remove Grievant, and told her before she met
with Wills.
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The Employer began an IIU investigation into why Grievant did not report
that she continued to receive the PTO premium even though she was no longer doing
that work. This was the first time the Employer investigated an overpayment as an
IIU matter.

The early steps of the process involved interviews and reviews of relevant
documents. The IIU investigator was Sgt. Frances Carlson. Grievant told Carlson that
she continued receiving the PTO premium after Wills removed her from that
position, and that she lotew she was receiving it. She also told Carlson that she did
not take any action because she was waiting for Wills to follow up on the issues she
raised.

During the investigation, Carlson discovered that, although Grievant was


getting the PTO premium improperly, she was not receiving a premium for patrol she
would have been entitled to had the PTO premium been discontinued.
The investigation material was reviewed by an IIU captain, an IIU advisory
board, and an oversight committee. The results then went to the appropriate precinct
major. In this case, that was Brad Thompson.
Thompson reviewed the investigation documents and then discussed the
matter with the advisory board. Based on that information, he formulated his
findings and recommendations.
Thompson found that Grievant admitted during the IIU investigation that she
knew both that she had been removed from the PTO sergeant position and that she
continued to receive the PTO premium after the removal. He found that she
acknowledged failing to notify HR or command staff of the issue, but pointed out
that she had never received a formal personnel order removing her from the PTO
position.
In Thompson's view, the lack of a personnel order did not mitigate the fact
that Grievant knew she had been removed by Wills, knew she should not be getting
the premium, and failed to report it. He concluded that the allegation of dishonesty
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was sustained. ^ For discipline, he recommended that Grievant be demoted from
sergeant to deputy, that she be suspended for 20 days, that she be barred from the
PTO program, and that she be required to reimburse the incorrectly paid PTO
premiums.
Anne ICirkpatrick was the chief deputy sheriff at the time. In that position, she
was the final step in the IIU review and recommendation process. In August 2013,
she reviewed Thompson's findings on the charges against Grievant. She concurred
with his discipline recommendation, believing it was reasonable given the facts.
Grievant was surprised that the charge of dishonesty was sustained. She felt
that the issue was caused by Wills' not filing the required paperwork and she was
willing to pay the money back. She assumed that if she accepted the recommended
discipline, that would close the matter. However, she thought the proposed discipline
was too harsh so she appealed to Urquhart, and requested a Loudermill hearing.
Grievant tried to get the hearing date changed to allow more time to review the
IIU file, because she had been off work on sick leave. She was not successful and the

hearing occurred as scheduled.


Grievant and Eggert appeared for the hearing. On the KCSO side, Kirkpatrick,
Thompson, Carlson and representatives from HR and the Employer's legal staff were
present, in addition to Urquhart.
Urquhart explained the purpose of the hearing. He mentioned that he had lost
trust in Grievant and said that he felt she had taken the money intentionallv.
Grievant was upset and emotional. She acknowledged the need to repay the
money. She recalls admitting that she was not doing the PTO sergeant work and that
she was getting the premium. She also recalls making a comment about not doing
someone else's work; she was trying to express that it was not her job to notify HR.^
Grievant was particularly upset about the recommended demotion.

His report used the more formal terms of the policy.


'Grievant sent the County a check in November 2014 to repay the premium.
KCPOG and King County Sheriffs Office
Alexander Grievance
After listening to Grievant's presentation, both Kirkpatrick and Thompson
changed their minds about the proposed discipline. Kirkpatrick felt that Grievant
failed to take responsibility for failing to report the overpayment. She recalled
Grievant calling herself the "victim," claiming that she had done nothing wrong, and
saying that she was not going to take responsibility for others' mistakes. She
remembers Grievant being emotional, upset that command officers failed to get the
personnel order created, though she acknowledged that she needed to repay the
money.

Thompson felt that Grievant failed to accept responsibility for her failure to
act. He recalls that she did not express any remorse, that her tone was angry. He
remembers that Grievant did acknowledge the need to repay the money, but that she
felt command staff were at fault for failing to file the personnel order paperwork.
Based on what they heard, both ICirkpatrick and Thompson told Urquhart that
they felt discharge was appropriate, that lesser discipline would not do any good given
Grievant's attitude.

When Urquhart was running for sheriff, he had made accountability one of his
key issues. After the election, he met with command staff and with each individual
sergeant. He emphasized honesty and the importance of having the community's
trust.

Before Grievant's Loudemiill hearing, Urquhart had reviewed the IIU file and
considered Thompson's recommended discipline. He had not reached any decision
about what to do.

Since he has been sheriff, Urquhart has not always accepted discipline
recommendations. After reviewing the file and listening to Grievant, he agreed with
Thompson's recommended finding that the dishonesty charge was sustained. He
consulted with Kirkpatrick and Thompson and the other management officials
present.

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In Urquhart's view, Grievant did not admit fault or express remorse. She knew
she was getting the PTO premium even though she had been removed, and she failed
to tell anyone. He recalled Grievant as angry, blaming the department, and saying she
was tired of being mistreated. He felt that Eggert tried to minimize the issue by
claiming that overpayments occur regularly without employees being disciplined.
Grievant's attitude surprised Urquhart. He had expected her to explain what
happened, apologize, and take responsibilitv for her actions.
Urquhart did not find any mitigating factors. He saw this as not just an
overpayment issue, but a matter of honesty, because she kept taking the pay even
though she knew she was not entitled to it. As an aggravating factor, the sustained
finding required KCSO to notifV County prosecutors that Grievant was subject to its
Brady list.^
Urquhart ultimately concluded that discharge was appropriate. He issued
Grievant a letter on November 25, 2013, discharging her effective December 2,2013.
rv. Discussion

The Guild grieved the County's decision to discharge Grievant, arguing that
the County did not have just cause. For the reasons explained below, I conclude that
the County did not have just cause to discharge Grievant but did have just cause for
other discipline.
A. Preliminary Matters
Just Cause

Article 12, Section 5 of the parties' agreement provides:


lust Cause Standard. No employee may be discharged, suspended
without pay or disciplined in any way except for just cause. The County
will employ the concept of progressive discipline.

Urquhart acknowledged that a sustained finding of dishonesty does not always lead to discharge.
He also acknowledged that Grievant did not try to mislead KCSO about receiving the pay, but he
still considered her actions deceptive.
Grievant was put on the list. Although being on the Brady list does bar an individual from being
an officer, it may cause difficulties for prosecutors in using that individual as a witness.
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The parties recognize that this contract language does not define the term just
cause. Each referred to common arbitral standards in support of its suggested
meaning of the term. As those cases demonstrate, arbitrators apply a variety of tests
to determine just case.
Put simply, just cause is a measure of whether the employer had a good and
sufficient reason for the discipline imposed, and acted fairly in imposing it.'^ The
critical questions are whether the employer proved its charges against the employee,
whether the employee received the required industrial due process, and whether the
discipline was appropriate under all the circumstances.
In this case, the contract language expressly incorporates the progressive
discipline concept into the just cause standard. Progressive discipline serves at least
two significant purposes. It gives the employee a chance to correct unacceptable
behavior. It also puts the employee on notice that future misconduct of a similar
nature will result in a more serious penalty.
The requirement to use progressive discipline does not mean the Employer
must use the typical progression from oral warning to written reprimand to
suspension to discharge regardless of the circumstances, however. The extent to which
progressive discipline is required depends on the facts of a given case. Some
misconduct is so serious that suspension or discharge may be warranted even for a
first offense.

Quantum ofProof
The parties agree that the Employer has the burden of proving that it had just
cause to discharge Grievant. They do not agree about the quantum of proof required
in this case.

The County argues that I should apply the preponderance of evidence


standard. Under that standard, the County must prove that Grievant's conduct was.

Elkouri & Elkouri: How Arbitration Works, 6th Ed., Ruben, ed., 932(BNA 2003).
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more likely than not, dishonest. It must then show that termination was reasonable
discipline, all things considered.
The Guild contends that I should apply the higher standard of clear and
convincing evidence. According to the Guild, the County agreed in the hearing that
this was the appropriate level of proof. The Guild also offered a number of case cites
in support of using the clear and convincing standard, the underlving premise being
that allegations of miscondua reflecting on a person's character require a higher
standard of proof than merely a preponderance of evidence.
The Guild's contention that the County agreed that clear and convincing was
the appropriate standard is not exactly accurate. Urquhart testified that it was the
standard he tried to follow in reviewing cases, but the County did not concede in any
of its legal arguments that clear and convincing was the standard that I ought to
apply in this proceeding.
The Guild is correct that arbitrators in cases involving charges concerning
illegal or immoral conduct sometimes apply a higher quantum of proof than the
preponderance standard.^' Arbitrators are not of one mind on quantum of proof
questions, however.
Standards such as "clear and convincing" or "preponderance" are largely
subjective, and 1 generally do not find them to be very useful in labor arbitration.
What matters is whether I am persuaded by the evidence as a whole that the grievant
committed the alleged misconduct, and if so, whether discharge was the appropriate
penalty for the offense. I considered the cited cases and authorities, but found no
reason to applv a specific quantum of proof in this case.
Removal Policy
Both parties spent time in their post-hearing arguments discussing the
language of the removal policy in an effort to bolster their respective positions. The

" The Common Law of the Workplace at 178-180.


Elkouri & Elkouri: How Arbitration Works, 6th Ed., Ruben, ed., 949-952 {BNA 2003); The Common
Law of the Workplace at 178-180.
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County argued that Grievant's interpretation was incorrect, to support its claim that
she knew she was in the wrong when she continued to receive the premium. The
Guild pointed out that Shelledy arguably read the policy the same way Grievant did,
and that even Wills' subsequent actions and statements were consistent with
Grievant's view, thus supporting its contention that Grievant's actions were
reasonable.

An interpretation of the removal policy is not necessary to my resolution of the


issue presented by the grievance. Whichever reading of the policy is correct has no
meaningful bearing on whether the County established that Grievant committed the
alleged misconduct or that discharge was the appropriate penalty under the
circumstances.

B. Merits

Proofof Guilt
County. The County argues that the evidence, based on testimony from Seo,
Thompson, Kirkpatrick, and Urquhart, established that Grievant knew she continued
getting the premium after Wills removed her, that she believed she had no obligation
to raise the issue because it was management's responsibility to get her pay changed,
and that she did nothing wrong.
The County contends that Grievant's assertion at the hearing that she did not
understand the question in the IIU interview is not credible for at least three reasons.
Carlson's question was clear and Grievant did not ask for clarification. In addition,
her testimonv is contradicted bv Seo's recollection of his conversation with her. Most

importantlv, on cross-examination, she admitted that she did review at least some
paystubs, knew she was still getting the premium, and failed to tell anyone.
As further evidence that Grievant knew that her conduct was improper, the
County points out that she acknowledged that if she was aware that a recruit was
being overpaid, she would take steps to see that it was corrected and would have a
problem with a recruit who failed to come forward.
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Guild. The Guild counters that the evidence does not show that Grievant

was dishonest. There is no proof that Grievant acted with intent to deceive, a
necessary element of a dishonesty charge; she made unintentional mistakes.
According to the Guild, the timing of events is important. Grievant saw the
premium pay on her paystub not long after her meeting with Wills. At that point, she
believed she was actively challenging the removal and she was waiting for him to
respond, so she did not view the premium as an overpayment. The same is true when
she contacted Shelledy-she was still waiting for a response from Wills. While she did
not mention the premium to Shelledy, she was not trying to deceive anyone but
rather continued to believe that Wills' decision was up in the air.
The Guild contends that other facts support her belief that the removal
decision was not final. Wills told her he would look into her concerns. Additionally,
the removal memo states that it will "take effect on service," yet Grievant had to ask
Wills for a copy because he was leaving the meeting with it and without asking her to
acknowledge service. Contrary to standard practice, the copy she received was not on
green paper.

The Guild points out that Grievant did not try to hide the fact that she was
still getting the premium. Although she did not tell Shelledy or Eggert about it, her
focus in those contacts was on keeping the job. With an increase in work and
personal issues, she stopped thinking about the whole subject and was no longer
checking her paystubs. Given the variance in her pay, it is not surprising that she did
not notice the 2% premium in the total.
According to the Guild, the County ignores evidence that is contrary to its
claim. For example, if Grievant was trying to hide the fact that she continued getting
the premium, it would not have made sense for her to accept Wills' offer to return to
the PTO sergeant position because her continued receipt of the premium would
become known.

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Likewise, the Guild argues that statements made by Seo and Grievant on
which the County relies are either explainable or do not provide convincing evidence
of guilt. Grievant's admission in the IIU interview that she saw the premium on her
check was an honest disclosure that she saw it after Seo inquired. In Seo's statement,
he did not sav that Grievant admitted she knew she was getting the premium all
along. Viewed in the context of their conversations, Grievant was only confirming
that her pavstubs showed she had been receiving it. Seo acknowledged he was only
paraphrasing her words, and he could offer no other details at hearing, so his
statement is hardly convincing.
Finally, the Guild contends that the evidence supports a conclusion that KCSO
acted in bad faith in its dealings with Grievant. Grievant was the most senior PTO
sergeant at the time the Employer decided to eliminate one position. Rather than
remove the least senior, it relied on a dubious interpretation of the removal policy to
remove her. When the Employer found out about the premium overpayment, it
immediately opened an IIU investigation charging dishonesty, despite the fact that
many other employees have been overpaid and none had ever been investigated. The
Employer ignored the faa that Wills created the problem by failing to follow proper
procedure initially and compounded that by failing to follow-up on Grievant's
concerns; no action was taken against Wills, but Grievant was discharged.
Findings and Conclusion: Proof of Guilt. The parties agree that proof of
the charged misconduct-dishonesty in this case-is one of the key elements in a just
cause determination. Among the fundamental questions in determining whether
conduct is dishonest are these: did the employee know that her conduct was wrong,
and did the employee have the intent to defraud the employer. I find that those
questions must be answered in the affirmative here.
Based on the evidence, particularly Seo's and Grievant's IIU interviews and
Grievant's conduct after her meeting with Wills, I find Grievant knew she was
receiving money to which she was not entided. Grievant understood when she left the
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meeting with Wills that she had been removed from the PTO sergeant position.
Consistent with that knowledge, she stopped performing the duties of that job, and
told others that she had been removed. Nonetheless, when she saw the premium still
on her paystub after that meeting, she did nothing to correct the overpayment, even
though she should have known that she was no longer holding the position for which
the premium was paid.
Giving Grievant the benefit of the doubt about failing to act in April, since it
was not long after she met with Wills and she may have reasonably believed that her
status was still in question, that was no longer the case by the time she contacted
Shelledy in June or Eggert in July or August. Bv that point, she knew that she was no
longer a PTO sergeant. She knew that she was not doing the work, and she knew or
should have known that she should not be getting the premium. Yet still she took no
action.

Grievant's failure to act continued for several more months until she was

invited to take on the PTO sergeant job again and the premium overpayment came to
light. Given her statement to Seo when he asked her about it-words to the effect that
it was not her job to get the pay changed-there is no reason to believe she would have
ever come forward.

Intent takes different forms. In contrast to an employee who actively plans to


take money from her employer and then affirmatively acts on that plan, Grievant got
the premium money as a consequence of Wills' error. She did not plan to take money
that she did not deserve. She did not take action to get that money.
But Grievant's conduct was no less intentional for being passive. Based on
what she told Seo and what she said in the Loudennill hearing, she intended to say
nothing about getting the premiums. As noted above, it was her belief that it was not
her job to get the pay changed, and if Wills did not do it, she would continue to take
the money.

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The Guild argues that she did not intend to deceive the County. I do not
agree. The intent to remain silent, under the circumstances, is as deceptive as making
a misleading statement. This is not a circumstance, at least as it played out, where
Grievant exercised bad judgment or made a good faith mistake. She knew she was not
doing the job for which the premium was paid and she willfully did nothing in
response.

The Guild claims that Grievant reasonably believed that the removal decision
was not final. That claim is not supported by the facts. She admitted at hearing that
she knew when the meeting with Wills was over that she was no longer a PTO
sergeant. Her plan to challenge that decision did not give her license to accept pay
that she did not earn. If she had a reasonable doubt after first seeing the premium
still on her paystub, she should have asked Wills or HR. After talking to Eggert, she
took no steps to challenge Wills' decision.
The Guild points out that Wills not only did not follow up on the issues
Grievant raised, he did not properly serve the removal memo and did not provide it
on the standard green paper. It suggests that the County acted in bad faith by not
addressing Wills' conduct.
There is no doubt that Wills failed to do several things he should have done.
He should have filed the paperwork necessary to remove the premium. He should
have investigated the issues Grievant raised. He should have followed procedure in
serving the removal memo. There is also no doubt that Wills' failure to do his job laid
the foundation for what followed. But for that failure, Grievant would not have
continued to receive the premium and there would not have been an issue about her
decision not to come forward. But Wills' failure to do what he was supposed to do
does not excuse Grievant's failure to take responsibility to correct the overpayment.
In sum, after carefully considering the evidence and arguments offered by both
sides, I conclude find that the Employer established that Grievant committed the
charged misconduct. That is, it was dishonest for her to continue to accept the PTO
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sergeant premium after she was removed from the position. She intentionally
remained silent and continued to receive pay for a position she no longer held.
Neither Wills' mistakes nor her offered justifications absolve her conduct.
Reasonableness ofPenalty
County. According to the County, discharge was the appropriate penalty for
Grievant's conduct. The County argues that where the evidence establishes a
grievanfs guilt, an arbitrator should not substitute his^er judgment on the penalty,
absent an abuse of discretion. Nothing in this record supports a finding that the
Employer's decision was discriminatory or arbitrary. The arbitrator's application of
fairness must take into account the context-the nature of the work, the Employer's
expectations, etc.
The County points out that honesty is a core value in KCSO, and policies
identify acts of dishonesty as serious misconduct. Urquhart personally emphasized
the importance of honesty and accountability with individual supervisors soon after
he took office. He stressed the difference between making a mistake while trying to
do the right thing on one hand versus doing the wrong thing. Grievant acknowledged
in her testimony that she knew honesty was a core value. In fact, honesty is so
important in law enforcement that it would not matter if there was no policy.
The County contends that the arbitrator should not undermine that core
value. To do so would be contrary to arbitral authority and arguably against public
policy. Many decisions support discharge for dishonesty, even for a first offense, and
especially when one holds a position of public trust.
The County further argues that there were no mitigating circumstances. None
of the explanations offered by Grievant justifies her failure to come forward.
Grievant admitted that she knew she had been removed, and told others about

the change in status. Whether Grievant believed that Wills had no basis to remove
her is irrelevant, given her admission that she knew he had done so and that she was

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Alexander Grievance
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no longer entitled to the premium. In any event, the removal was valid under the
policy and she did not grieve it.
That Grievant did not deny getting the premium is likewise irrelevant; the
charge is that she failed to come forward when she knew she should not be getting it;
lying by omission is still lying. The claim that she was not responsible for the
continued premium payment merely demonstrates her failure to accept responsibility.
While she may not have checked every paystub, she did check the one after Wills
removed her and saw the premium was still there, and she admitted checking at least
some after that and seeing it.
Grievant's personal circumstances, while difficult, also do not justify her failure
to come forward, especiallv given that she continued to perform satisfactorily. Her
long tenure does not mitigate her conduct because someone with her experience
clearly should have known better and should be held to a higher standard.
The claim that overpayments occur regularly without employees being subject
to discipline may be true, but there is no evidence that any of those occurred in
similar circumstances. Urquhart has consistently discharged employees for
dishonesty.
Finally, the County contends that Grievant's attitude in the LoudermiU hearing
supports its decision. Her anger about workload issues and the prior IIU
investigations that led to the removal caused her to believe that she was a victim and
justified her continued receipt of the premium. The belief that she can set aside the
Employer's core values because of someone else's actions and avoid responsibility for
the consequences makes her unfit for a position in law enforcement. She knew that if
she appealed to Urquhart the outcome might be different than if she accepted the
proposed discipline.
Grievant was dishonest and offered no reason for the Employer to think she
would behave differently in the future. The grievance must be denied.

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Alexander Grievance
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Guild. Though no discipline is appropriate because the County failed to
prove its misconduct charges, the County in any event did not prove that discharge
was a reasonable penalty. Arbitrators find penalties excessive where they are
disproportionate to the offense, where they are punitive instead of corrective, and
where mitigating circumstances were ignored.
The County ignored several mitigating circumstances. First, the County was
also at fault, and where such management fault contributed to the misconduct,
arbitrators may reduce the penalty. This is a fairness concept-absent management's
fault, there would have been no issue to be investigated. Wills compounded the fault
by not investigating Grievant's claims, as he said he would, thus causing her to believe
that her status was still in dispute.
A second mitigating circumstance is the County's unequal treatment of
Grievant. Arbitrators expect employers to exercise discipline consistently. In this case,
the County treated Grievant differently than many other employees who were
overpaid, including several who received overpayments for much longer than
Grievant. In all those cases, the County took no action other than to collect the
overpayment. In contrast, it started an IIU investigation on Grievant and charged her
with dishonesty.
The County's claim that Grievant's situation was different because she took the
overpayment knowingly is unsupported in the record. The County does not and
cannot know whether those other employees knew they were being overpaid because
it never investigated them.
Because the County had not investigated other employees who were overpaid
for dishonesty, Grievant was not on notice that she could be subject to discipline, let
alone discharged, for such conduct.
Aside from the failure to consider mitigating circumstances, the County did
not show that discharge was proportional to the charged misconduct, or that
progressive discipline was not warranted.

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Alexander Grievance
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The penalty is too severe for several reasons. Grievant was not responsible for
the overpayment. She did not try to hide it. She was forthright in the investigation.
The County failed to give adequate weight to Grievant's long tenure and good
performance. Thompson and Kirkpatrick, even though they found the charge of
dishonesty sustained, nonetheless did not recommend discharge initially. Other
employees with a sustained dishonesty charge continue to work for KCSO.
Grievant was within her rights to request a Loudef-mill hearing. She wanted
Urquhart to understand that she did not intend to take money from the Employer.
The County discharged her because she did not show remorse for intentionally taking
the money, especially when she did not have that intent. She did take responsibility
by acknowledging the need to repay the money.
Urquhart and others reacted negatively to Grievant's presentation. They did
not consider that she was returning from an extended sick leave, had asked for a
postponement to allow more time to prepare, and was surprised by Urquhart's
opening remarks about losing trust in her and feeling that she acted intentionally.
When she got emotional, County officials interpreted her behavior as anger at the
County rather than asking her why she was upset. The perceptions of County officials
led Urquhart to increase the penalty.
Because the County failed to prove by clear and convincing evidence that
Grievant was dishonest, the arbitrator must conclude that just cause for discharge did
not exist and the grievance must be sustained.
Findings and Conclusion: Reasonableness of Penalty. The parties also
agree that another key element of a just cause determination is whether the penalty
imposed was reasonable under the circumstances. On this point, the Guild has the
better argument, and I find that discharge was not a reasonable and appropriate
penalty for Grievant's proven misconduct.

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The County, quoting from a 1945 decision by Arbitrator McCoy, argues that if
I agree that it carried its burden of proving Grievant's misconduct, I should not
interfere with its choice of penalty, unless it abused its discretion.
The issue of arbitral deferral to an employer's choice of penalty has been the
subject of much discussion and debate among arbitrators in the ensuing 70 years.
While I do not disturb the penalty imposed by an employer lightly, I favor the view
that the arbitrator's role is not merely to determine if the employer proved the
employee's guilt, but also to decide whether the penalty chosen was fair and
appropriate-whether there was just cause for that penalty. As another treatise puts it.
The concept of 'just cause' implies not only that the employer have
'cause' for disciplining the employee, but also that the discipline be 'just'
in relation to the asserted cause.^^

The County also argues that honesty is a core value in the KCSO, and that
modifying the penalty would undermine that value. While I agree that honesty is a
critical matter in law enforcement, I do not agree that a reduced penalty here would
necessarily undercut its importance. The evidence established that there are officers
working for the County who have been found guilty of dishonest conduct.
My decision regarding the penalty turns mainly on the question of mitigating
circumstances. The County argues that there were none; the Guild contends that the
County did not consider them.
I find that there were important mitigating circumstances that the County
failed to either consider or give adequate weight. As discussed below, among the
factors an arbitrator may consider in evaluating the reasonableness of a penalty are an
employee's length of service, performance, prior disciplinary record, level of harm

StockJiam Pipe Fittings Co., 1 LA 160 (1945).


See discussion and footnotes pp. 958 through 962, Elkouri &.Elkouri: How Arbitration Works, 6th
Ed., Ruben, ed.
Common Law of the Workplace, St. Antoine, ed., 172.
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Alexander Grievance
22
from misconduct, clarity of rules, disparate treatment, and degree of fault or
provocation from others.
Grievant worked for KCSO for 27 years. Her performance, as recorded in
evaluations, was good; Wills believed she did a good job as PTO sergeant. These
factors favor Grievant, though they are not sufficient by themselves to offset her
misconduct.

The nature of Grievant's offense, particularly given her position, does not favor
her. Although the financial harm was minimal, the County understandably lost trust
in her. However, other issues minimize the importance of this factor.
One critical mitigating factor is that of disparate treatment. The Guild
introduced evidence concerning several other employees who were overpaid. Some
received more money than Grievant, and some received the overpayments for a
longer period than Grievant. The County did not conduct IIU investigations into any
of those employees, nor did it discipline them for accepting the overpayments and
not reporting it; they only were required to repay the money.
The Guild contends that this shows unequal treatment and an inconsistent
application of discipline. The County's response is that there is no evidence that any
of those employees were in situations similar to Grievant.
This factor cuts both ways. I agree with the County that, on this record, it is
not possible to determine whether any of those employees received their overpayment
in like circumstances, i.e., having been removed from the position or duty for which
the money was paid. At the same time, the Guild is correct that the record also does
not show whether any of those employees knew they were being overpaid and did not
report it, because the County never investigated any of them.
On balance, however, I find that this issue favors Grievant. The County argues
that Grievant knew or should have known she was still getting the PTO sergeant
premium because it was a line item on her paystub. Applying that same logic, it is
reasonable to infer that an officer who got a different premium or some other
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Alexander Grievance
23
payment for over a year knew or should have known that he/she was receiving it, and
knew or should have known that he/she was not entitled to it. The County handled
Grievant's situation differently, and offered no cogent explanation for that difference.
Its decision to investigate Grievant is understandable, but its lack of investigation
into these other cases is not, and supports modification of the penalty.
In this regard, the Guild argues that the County's approach to other employees
who were overpaid did not put her on notice that she could be disciplined for not
coming forward when she realized she was being overpaid. That argument is
unpersuasive. First, honesty is an area for which no specific notice is required-
Grievant knew or should have known that accepting money for services she did not
perform was wrong. Second, there is no evidence that Grievant had particular
knowledge of these other situations.'^ Most importantly, the question here is what
Grievant should have done, not what others did or how the County handled their
circumstances.

The most significant mitigating factor here is the degree of management fault.
There is no need to belabor Wills' failures. Suffice to say that had he done his job,
there would have been no need for this arbitration. While that does not excuse

Grievant's own failures, it does weigh heavily in favor of modifying the penalty,
particularly where the County took no disciplinary action against Wills.
The Guild also raised an issue about the Loudemill hearing and the basis on
which Urquhart decided to impose more serious discipline than had been
recommended. His decision, along with the recommendations of IGrkpatrick and
Thompson, was reached not on the basis of new information, but rather based on
perceptions about Grievant's attitude. The material facts of the case did not change
from those outlined in Thompson's recommendation.

The County apparently discovered these instances in response to the Guild's information
request.
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Alexander Grievance
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While that is troubling, and may raise a question about the objectivity of the
process, it did not influence my decision. The County's failure to consider critical
mitigating factors led to my conclusion.
For all these reasons, I conclude that discharge was a disproportionate penalty
to levy for Grievant's conduct. In reaching this conclusion, I do not condone that
conduct, but the County's decision to discharge her was inappropriate under the
circumstances.

Remedy
The Guild argues that no discipline at all was appropriate, and suggests that I
order reinstatement with back pay. The County does not acknowledge that any
discipline other than discharge was appropriate.
I concluded that Grievant was guilty of the charged misconduct. Her failure to
come forward and report the overpayment was not the behavior reasonably expected
of someone in her position.
I also concluded, however, that the County imposed a penalty that was neither
just nor reasonable. The County basically ignored the responsibility of one of its
supervisors in creating the circumstances that led to Grievant's actions, and also did
not explain why Grievant's situation was handled differently than others who were
overpaid.
As part of the IIU process, Thompson recommended that Grievant be
disciplined by demoting her to patrol officer, suspending her for 20 days, barring her
from the PTO program, and requiring restitution. Since no new evidence surfaced
during the Loudennill hearing, I will use the recommended discipline as a guide. I will
modify that recommended discipline, however, to a level consistent with my
conclusion regarding the Employer's fault and its failure to satisfactorily explain why
it handled Grievant's situation differently.
The County will be directed to reinstate Grievant as a sergeant, and make her
whole for lost wages and benefits. The back pay award will be reduced for interim
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Alexander Grievame
25
earnings, and the amount equivalent to a 20 working day suspension. The back pay
award will be further reduced to pay at the level of patrol officer, and will not include
additions for lost premiums or overtime. The County may, at its discretion, bar
Grievant from working in the PTO program. Since she has already repaid the County,
no order on restitution is required.

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AWARD

Having fully considered the whole record in this matter, and for the reasons
explained in the Opinion, I award as follows:

1. The County did not have just cause to discharge Grievant. The County did
have just cause to discipline Grievant. The grievance is sustained in part and denied
in part.

2. The County had just cause to suspend Grievant for 20 working days.

3. The County is ordered to reinstate Grievant as a sergeant in the KCSO. The


County, at its discretion, may choose not to allow Grievant to work in the PTO
program.

4. The County is ordered to make Grievant whole for lost wages and benefits, and
restore her seniority. However, the back pay award will be reduced for interim
earnings, if any, plus the amount equivalent to a 20 working day suspension. In
addition, the back pay award will be paid at the rate of patrol officer, and will not
include lost premiums or overtime.

5. I will retain jurisdiction for 90 days to resolve disputes over this Award, if any.

6. The parties are equally responsible for my fees and expenses.

Respectfully issued this 25th day of September, 2015.

)avidJWycxtitei
Arbitrator

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