BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MILWAUKEE DEPUTY SHERIFFS'
Gimbel, Reilly, Guerin & Brown, by Attorney Franklyn M.
Gimbel, appearing on behalf of the Association.
Mr. Timothy R. Schoewe, Deputy Corporation Counsel,
appearing on behalf of the County.
Milwaukee Deputy Sheriffs' Association, hereinafter referred to as the Association,
Milwaukee County, hereinafter referred to as the County, are parties to a collective
agreement which provides for the binding arbitration of disputes arising thereunder. The
made a request, with the concurrence of the County, that the Wisconsin Employment
Commission designate a member of its staff to act as an arbitrator to hear and decide a
a three-day suspension. Karen J. Mawhinney was so designated. Due to the unavailability
Arbitrator Mawhinney, the undersigned was substituted as arbitrator in this matter. Hearing
in Milwaukee, Wisconsin, on March 10, 1999. The hearing was not transcribed and
the parties filed
post-hearing briefs which were exchanged April 26, 1999. The parties reserved the
right to file reply
briefs and notified the undersigned that they would not be filing any replies and the record
on May 5, 1999.
The grievant is employed by the County as a Deputy at the Milwaukee County Jail
the third shift from 10:00 p.m. to 6:00 a.m. The grievant worked on
April 10, 1998,
and was assigned to Pod 3D. At approximately 10:30 p.m. on April 10,
1998, the grievant had a
physical altercation with an inmate. The altercation started when the inmate refused the
instructions to go to his cell and the grievant then began to move the inmate to the attorney
outside Pod 3D during which the inmate attempted to elbow the grievant in the chest. The
wet due to stripping and the grievant and inmate went to the floor and in attempting to get
inmate's arms out from under the inmate who was on his stomach on the floor, the grievant
the inmate in the arm and shoulder to create a dysfunction to get the inmate's arms out from
him. Another Deputy came to the grievant's assistance and the inmate was placed in the
cubicle. Other deputies witnessed the altercation and a nurse conducting medical rounds
part of it. The altercation lasted no more than ten seconds. At approximately
2:15 a.m. on April 11,
1998, the nurse who was troubled by what she observed reported the altercation to Captain
who contacted Sergeant Zwicke, the supervisor in the jail, to investigate the matter. At
2:30 a.m. Sergeant Zwicke went to Pod 3D. The grievant was off to lunch and the
the log and noted that the inmate was moved to the attorney cubicle for causing a disturbance
there was no mention of any use of force. At around 2:45 a.m. Sergeant Zwicke
grievant and ordered him to write a report about what occurred when the inmate was moved
attorney cubicle. The Sergeant then contacted the other deputies on duty and ordered them
complete reports on what they observed when the inmate was moved.
On May 21, 1998, Captain Brian Mascari interviewed the grievant in the presence of
Association representative concerning the incident with the inmate on April 10, 1998.
the grievant was suspended for three days for failing to report the use of force in a timely
Two deputies who observed the altercation were given letters of reprimand for failure to
The parties stipulated to the following:
Should Deputy Scott Radack have been disciplined?
If so, was the quantity of discipline
imposed reasonable under the circumstances?
POLICY AND PROCEDURES
DIRECTIVE NO. 3-97
January 15, 1997
RE: 11.23, REPORTING THE USE OF
11.23 REPORTING THE USE OF
A report (force.sum, in addition to the
citation, incident, or offense reports) will be filed in all
instances where force is used.
. . .
In all instances where deputies use force,
the following procedure shall be strictly adhered to:
(1) Any deputy who uses force shall, as
soon as possible, make an oral report to their immediate
Supervisor and/or the Shift Commander. Reference to the oral report shall be made in all
(2) Any deputy who uses force will submit
an initial report (Citation, Incident, or Offense) which
will include, but is not limited to, all details leading up to the use of force, the actual forced
the monitoring of the person on whom force was used.
All department members present at an
incident, at which force has been used, will submit a
supplemental report to the initial report.
The County points out that the grievant was not disciplined for having employed the
force but for violation of the procedure which requires to "as soon as possible make an oral
and then to submit an initial written report. It observes that the altercation occurred at
and after the incident, the grievant made no oral or written report. It notes that several
Sergeant Zwicke went to the Pod but the grievant was at lunch and Zwicke read and signed
which noted the inmate had been moved to the attorney cubicle but
there was no mention of the use of force. The County contends that some four hours
incident, Zwicke contacted the grievant and specifically directed the grievant to report what
which the grievant did and later filed the required written report. It asserts that the grievant
trained in the policy and the manner in which to report use of force incidents. It states that
grievant attempts to excuse dilatory conduct by saying he intended to tell Zwicke but when
do so is not offered. The City submits that the grievant admitted that but for Zwicke's
no report would ever have been made.
It insists the grievant's excuse does not hold up. It contends that the policy is clear
unambiguous and the grievant never obeyed the rule to report as soon as possible as nothing
prevented him from doing so during the four hours after the incident. It claims that the
misconduct is twofold: He failed to act pursuant to the rule and he did not submit the
until directly ordered to do so. It maintains that words have meaning and the use of force is
matter and the term "shall report" does not make reporting optional and "as soon as possible"
as soon as you can and not when you get around to it. It states that the failure to follow the
imply a cover up. It concludes that the grievant did not follow the rule and would not have
the report of a nurse. It takes the position that this is a serious matter and arguably the
lenient as the suspension imposed was reasonable under the circumstances.
The Association states that the basis for the grievant's suspension was that there was
indication that the grievant was to make a report until ordered to do so by Sergeant Zwicke.
Association contends that clear language must be applied and ambiguous language must be
interpreted and ambiguous language must be construed against the drafter because the risk of
ambiguity should be assessed against the drafter.
It submits that the grievant submitted an initial report and complied with the clear
of Sec. 11.23.3 (2) of the Use of Force directive and his suspension s improper. It argues
Sheriff's suspicion that the grievant only complied because he was ordered to do so is
states that even if it is relevant, it is not out of the ordinary for deputies to submit written
their supervisor told them to do so because they are required to make an oral report before
a written report. It points out that Sec. 11.23.3 (2) does not suggest a time frame, so the
the grievant did not submit an initial report until four hours after the incident cannot be the
a violation. It claims the County cannot assert such an inference because inferences must be
in favor of the grievant, not the drafter. It concludes the suspension is improper.
Alternatively, the Association argues that if it is concluded that the grievant violated
11.23.3, the suspension is unreasonable and it should be reduced to a written reprimand.
The facts are undisputed that the grievant used force on an inmate. The grievant's
force was investigated and he was exonerated regarding treatment of prisoners. The grievant
not disciplined for his use of force; rather, he received discipline for his failure to report it
not filing an initial report until ordered to do so. The Association focuses on Sec. 11.23.3
(2) of the
procedure; however, Sec. 11.23.3 (1) clearly states that a deputy who uses force shall as
possible make an oral report to their immediate supervisor. The grievant did not do so.
no evidence that he was engaged in some activity that prevented him from reporting it shortly
it occurred. The grievant admitted he was familiar with the procedure having been instructed
jail within the last two years. The log indicates that at 2230 the inmate was moved out to the
cubicle for disrespect to Deputy, causing a disturbance, threats to staff and using obscene
(Exhibit 5) It is silent on the use of force. The grievant claimed he was waiting for
to come on his rounds and was going to tell him then. Sergeant Zwicke did go to Pod 3D
grievant had gone to lunch, so he missed the chance to verbally tell him what happened.
never called the Sergeant nor did he write an initial report then. Instead Zwicke contacted
grievant and had him come to Zwicke's office at which time he was ordered to write the
(Exhibit 6) In his interview with Captain Mascari on May 21, 1998, the grievant was
asked if he
wrote a report on the incident. The following is the exchange between the Captain and the
MASCARI Did you write a report on this at all?
RADACK After I was
instructed to do so, yes.
MASCARI Were you 'gonna
write a report unless you were instructed to?
RADACK If I would have sent
the inmate to 4D, yes I would have wrote a report.
MASCARI Uh huh.
RADACK Otherwise, no Sir, I
would not have.
RADACK Well, just about
99.9% of the reports I've written I've been ordered
(Exhibit 4, page 8)
The grievant admits that he would not have written a report unless ordered to do so,
would the Sergeant know to order a written report unless he knew of the incident and how
he know if the grievant made no oral report?
This point was made by Captain Mascari in the following exchange:
RADACK If Sergeant Zwicke would have came
through on his rounds, and I
would explain to him what had occurred, I would not have wrote a report, yes.
RADACK I made the mistake
of not notifying him immediately, therefore, he
found out before I had a chance to talk to him, and was automatically ordered to write the
MASCARI What do you mean
before you had a chance to talk to him? Did you
have two to three hours to talk to him?
RADACK Yes, Sir, I did.
MASCARI Now if he would
come through on a round on 3D, and you happened
to be a lunch, was there anything that would indicate to him that there was an incident
regarding the use of force in pod 3D or, ah, in the third floor hallway?
RADACK No. Sir.
MASCARI So if he would not
have ordered you to write a report, would any
reports have been forthcoming from you?
RADACK Again, Sir, if I
would have told him what had transpired, I.
MASCARI That's not when I'm
RADACK Would have wrote
MASCARI Please listen to the
question. If he had not ordered you to write a
report, would you have written a report on this matter?
RADACK (No answer heard.)
MASCARI Its (sic) pretty much
a yes or no question. I mean, I'm not 'gonna limit
you to that, but I'm 'gonna ask you to stay focused on it.
RADACK All, all I can, all I
can say is that if I would have told him, ah.
(Exhibit 4, page 13)
Whether the grievant made a mistake or intentionally decided not to make the report,
is that he did not follow reporting the use of force procedures and therefore should have been
As to the quantity of discipline, those deputies who observed the incident and failed
it were given a written reprimand. It was the grievant who used the force and was obligated
it as soon as possible and to write an initial report. He had a greater burden and he failed in
it so he
deserves greater punishment. The undersigned cannot conclude that a three-day suspension is
excessive and unwarranted.
Recent news reports indicate that many counties and cities are being criticized for
brutality and inmates of prisons file an enormous number of lawsuits, albeit the vast majority
are frivolous; however, there are costs associated in responding to them. Thus, it is
use of force be reported promptly so that inferences that such incidents were not timely
because deputies had something to hide or cover up cannot be entertained. In light of all the
circumstances, the undersigned concludes that the three-day suspension was reasonable.
Based on the above and foregoing, the record as a whole, the arguments of counsel,
undersigned issues the following
The grievance is denied.
Dated at Madison, Wisconsin, this 11th day of June, 1999.
Lionel L. Crowley, Arbitrator