BEFORE THE ARBITRATOR
In the Matter of the Arbitration Between
MILWAUKEE DEPUTY SHERIFFS'
MILWAUKEE COUNTY (SHERIFF'S
Attorney Franklyn M. Gimbel, Gimbel, Reilly, Guerin &
Brown, 111 East Kilbourn
Avenue, Milwaukee Wisconsin, for the Association.
Attorney Timothy R. Schoewe, Deputy Corporation Counsel,
901 North Ninth Street,
Milwaukee Wisconsin, for the County.
The Milwaukee Deputy Sheriffs' Association and Milwaukee County are parties to
a collective bargaining agreement that provides for final and binding arbitration of disputes
arising thereunder. The Association made a request, in which the County concurred, for the
Wisconsin Employment Relations Commission to appoint a member of its staff to hear and
decide a grievance concerning the application and interpretation of the terms of the
relating to discipline. The Commission designated Stuart Levitan to serve as the impartial
arbitrator. Hearing in the matter was held in Milwaukee Wisconsin on April 9, 1999; it was
not transcribed. The parties submitted written arguments by June 4, 1999.
The parties stipulated to the following statement of the issue:
Did the employe violate work rules as alleged? If so, was the
RELEVANT RULES AND
MILWAUKEE COUNTY CIVIL SERVICE RULE
(l) Refusing or failing to comply with departmental
work rules, policies or procedures.
. . .
(t) Failure or inability to perform the duties of
. . .
(y) Falsification, modification or unauthorized
alteration of any county report or record.
MILWAUKEE COUNTY SHERIFF'S
1.05.14 Rule 14 Efficiency and
Members shall adequately perform reasonable aspects of police work. Such
expected aspects include, but are not limited to: report writing, physical
intervention, testimony, firearms qualifications and knowledge of the criminal
"Adequately Perform" shall mean performance consistent with the ability of
equivalent trained members of the department.
1.05.15 Rule 15 Courtesy and Civility
Members of the department shall answer all inquiries from citizens in a
courteous manner and, if requested, shall give their name and badge number.
Courtesy and civility toward the public is demanded of all members of the
department, and conduct to the contrary will not be tolerated. Members in
their conduct shall be civil and orderly, and shall at all times exercise the
utmost patience and discretion.
1.05.18 Rule 18 False Information
Members of the department shall not make false reports, or enter, or cause to
be entered, or amend any department books, records or reports.
Comment: This rule shall also apply to making a false oral report.
1.05.35 Rule 35 Truthfulness
Members are required to relate the truth, whether under oath or otherwise.
1.05.46 Rule 46 Written Reports
Reports must be accurate, complete and must contain all pertinent
Nicholas J. Karlinsky, 48, has been a Milwaukee County Deputy Sheriff I since
following a few years' law enforcement service in Florida and Arkansas. Assigned to the
County Jail, he currently performs significant supervisory responsibilities as a shift leader on
the jail's Emergency Response Team. This grievance concerns the four-day unpaid
he received for events arising out of an overtime shift he worked at a baseball game between
the Chicago Cubs and Milwaukee Brewers.
On July 11, 1998, Karlinsky was providing additional security in the left-field
bleachers at Milwaukee County Stadium. During the game part of the first series in
Milwaukee between these teams a patron, Jack Melville, asked Karlinsky to deal
drunk Brewers fan who was spewing beer, assaulting Cubs fans, yelling sexual commentary,
and generally harassing other patrons. According to a sworn complaint which Melville filed
on July 16:
Officer Karlinsky said that it was impossible for him to watch one
man in a crowd of
50,000. I pointed out to him that this guy was easily identifiable. He was bare chested,
wearing a pink Hawaiian Lei, and was standing ten rows in front of him. I then pointed out
the gentlemen to him. He repeated that he could not watch one person in such a large
There was another Milwaukee Co. sheriff standing next to officer Karlinsky listening to our
conversation. I told officer Karlinsky that the gentleman said he was going to get the cub
bandana and a fight appeared eminent. He again said there was nothing he could do.
Fed up I left the bleachers and got a coke
from the bleacher concession area. After I left
the conflict between my friends and the gentleman wearing the bandana escalated, and one
of my friends, Steve Givens, walked down to talk to officer Karlinsky. He told officer
Karlinsky that the gentleman behind us was getting out of hand and that he feared a fight
could break out. Officer Karlinski
told Steve that he could not watch one
person in a crowd of 50,000. Steve expressed his
dissatisfaction and said he was leaving. Officer Karlinski told him to "not let the door him
Steve exited the bleachers and we met in the
concession area. As we stood there, officer
Karlinski and the other Milwaukee CO. officer approached us on their way to the parking
I expressed my dissatisfaction in their lack of intervention inside the stadium and that after
hearing what was said to Steve that I wanted his name and badge number.
Steve and I left the game leaving our cub
friends behind. As we were leaving, Scott
Jenkins, vice president of stadium operations approached us and said he was aware of the
treatment and that it was unacceptable.
In summation, I do not wish to bring
unjustifiable accusations or injustice to any police
officer. I felt in this case, for whatever reason, officer Karlinski was rude and negligent in
duty to respond and prevent both physical and verbal abuse.
The complaint form that Melville submitted bore the following notice:
ATTENTION: STATE STATUTE 946.66(2) FALSE COMPLAINTS OF
MISCONDUCT. WHOEVER KNOWINGLY MAKES A FALSE COMPLAINT
REGARDING THE CONDUCT OF A LAW ENFORCEMENT OFFICER ISS
SUBJECT TO A CLASS A FORFEITURE.
On July 31, Capt. Keith F. Zauner, Police Services Bureau, sent Karlinsky the
Please respond to the attached complaint, pay particular attention to the
1. What did you observe regarding the
behavior of the party they complained
about? Was there any corroboration of the behavior by an usher?
2. Why didn't you take action, when
you have a complainant?
3. Was there a reason that you felt
Mr. Melville didn't have a legitimate
complaint (was he intoxicated or was he the antagonist)?
4. Did you talk to the other party?
5. Did you make the comment, "don't
to let the door hit you in the ass on the
On August 3, Karlinsky responded with the following typed statement:
ON SATURDAY, 07/11/1998, WHILE IN FULL
AND ASSIGNED TO
WORK THE BLEACHER AREA DURING THE BASEBALL GAME BETWEEN THE
MILWAUKEE BREWERS AND THE CHICAGO CUBS, I WAS APPROACHED BY AN
ELDERLY WHITE MALE WHO TOLD ME THAT HIS "BUDDY" WAS BEING
HARASSED BY ANOTHER INDIVIDUAL. THE ELDERLY MALE POINTED OUT A
WHITE MALE WHO WAS WEARING A BANDANNA ON HIS HEAD AND
IDENTIFIED HIM AS THE PERSON BEING HARASSED. THE MALE WHO FIRST
APPROACHED ME ORDERED ME TO KEEP AN EYE ON HIS FRIEND. THIS
INDIVIDUAL THEN POINTED TO A GROUP OF MEN WHO WERE SITTING IN
SECTION "B" OF THE BLEACHERS. THIS INDIVIDUAL THEN LEFT THE
BLEACHER AREA. I DID NOT OBSERVE ANYONE HARASSING THE MAN WITH
THE BANDANNA NOR DID THE INDIVIDUAL MAKE A COMPLAINT TO ME.
THERE WERE SEVERAL MILWAUKEE BREWER USHERS PRESENT OBSERVING
THE BLEACHER CROWD AND THEY DID NOT MAKE A COMPLAINT TO ME.
A SHORT TIME LATER, AS I WAS
WALKING DOWN THE BLEACHER RAMP
BY SECTION A THE SAME ELDERLY W/M APPROACHED ME AND STARTED
YELLING AT ME "I TOLD YOU TO WATCH MY FRIEND. THEY TOOK HIS
BANDANNA AGAIN. DO YOUR JOB. I TOLD YOU TO WATCH MY FRIEND." I
TRIED TO CALM THE SUBJECT DOWN AND EXPLAINED THAT THERE WAS A
LOT OF PEOPLE IN THE BLEACHERS AND THAT I COULD NOT JUST WATCH
ONE INDIVIDUAL. I ALSO TOLD THIS SUBJECT THAT JUST AFTER HE FIRST
APPROACHED ME I RESPONDED TO A FIGHT IN SECTION "D" OF THE
BLEACHERS. THE W/M WHO WAS YELLING AT ME CONTINUE TO YELL AT ME
STATING "I'M A YOUTH COUNSELOR AND I WORK WITH PEOPLE TO, ALL YOU
HAD TO DO WAS TAKE THE GUY OUT." THIS INDIVIDUAL THEN STARTED TO
POKE ME IN THE UPPER LEFT CHEST AREA YELLING "I WANT YOUR NAME
AND BADGE NUMBER." I TOLD THE SUBJECT THAT
MY BADGE NUMBER WAS 688 AND I
ALSO TOLD HIM HOW TO SPELL MY
NAME. I ALSO TOLD THE SUBJECT THAT I WAS GOING TO DO MY BEST TO
KEEP AN EYE ON HIS FRIEND BUT THAT I RESPONSIBLE FOR RESPONDING TO
OTHER INCIDENTS IN THE BLEACHERS.
IT SHOULD BE NOTED THAT ON THIS
DATE, 07/11/1998 THE ATTENDANCE
AT THE STADIUM WAS 52,000+ AND THAT THE BLEACHER AREAS WERE VERY
FULL. IT SHOULD BE NOTED THAT THERE WERE NUMEROUS INCIDENTS OF
FANS THROWING BEER AT EACH OTHER AS WELL AS NUMEROUS
ARGUMENTS AND SEVERAL FIGHTS IN THE BLEACHERS.
AS WE WERE TALKING WE WERE
JOINED BY A SECOND YOUNGER MAN
W/M WHO ALSO STARTED YELLING "ALL YOU HAVE TO DO IS WATCH OUR
FRIEND, THEY KEEP TAKING HIS BANDANNA, DO YOUR JOB OR YOU'LL BE
SORRY." BOTH OF THESE INDIVIDUALS APPEARED TO BE INTOXICATED.
THEY WERE BOTH SLURRING THEIR WORDS, THEY APPEARED TO BE
UNSTEADY ON THEIR FEET, AND THEIR EYES WERE GLASSY AND
BLOODSHOT. I TRIED TO CALM BOTH OF THE SUBJECTS, WHO REFUSED TO
IDENTIFY THEMSELVES, AND AGAIN TOLD THEM THAT IT WAS VERY
DIFFICULT TO KEEP AN EYE ON ONE PERSON WHEN THE ENTIRE BLEACHER
AREA WAS VERY FULL. PRESENT DURING THIS CONVERSATION WAS MY
TEMPORARY PARTNER DEPUTY T. MALECKI. I THEN TOLD THE TWO
INDIVIDUALS THAT I WAS GOING BACK TO THE BLEACHERS AND THAT I
WOULD TRY TO KEEP AN EXTRA EYE ON THEIR FRIEND. AT NO TIME DID I
RAISE MY VOICE, ACT IN A DISRESPECTFUL MANNER OR STATE "DON'T LET
THE DOOR HIT YOU IN THE ASS ON THE WAY OUT."
I ASKED THE TWO MEN THAT IF
THEY WERE NOT SATISFIED WITH THE
WAY I WAS HANDLING THE SITUATION I COULD AND WOULD CONTACT A
SUPERVISOR FOR THEM. THEY STATED "NO, WE'LL HANDLE IT OUR OWN
WAY, WE'VE GOT YOUR NAME AND BADGE NUMBER." I THEN WENT BACK
TO THE BLEACHERS AND SAW THAT THE GROUP OF MEN THAT THE ELDERLY
MALE HAD POINTED OUT WERE NO LONGER IN THAT SECTION OF THE
BLEACHERS. I ALSO SAW THAT THE W/M WITH THE BANDANNA WAS STILL
IN THE BLEACHER AREA THAT HE HAD BEEN SITTING
IN. I CALLED UP TO THE MAN
WEARING THE BANDANNA AND ASKED HIM
IF EVERYTHING WAS ALRIGHT. HE CALLED DOWN "YEAH, IT'S O.K."
I IMMEDIATELY TOLD SGT. KIPP
LEOPOLD WHAT HAD HAPPENED AND
POINTED OUT THAT THE YOUNGER OF THE TWO WHITE MALES HAD YELLED
AT ME. THE YOUNGER OF THE TWO MALES HAD RETURNED TO THE
BLEACHERS AND TRIED TO GET THE MAN WITH THE BANDANNA TO LEAVE.
I COULD HEAR THE YOUNGER MALE STATE "COME ON, LET'S GO." THE MAN
WITH THE BANDANNA CONTINUED TO WATCH THE GAME. THE W/M WITH
THE BANDANNA NEVER COMPLAINED TO ME OR, TO THE BEST OF MY
KNOWLEDGE, TO A MEMBER OF THE BREWERS STAFF. I THEN TRIED TO KEEP
AN EYE ON THE PERSON WITH THE BANDANNA BUT WAS CALLED AWAY BY
A BREWERS USHER WHO HAD A COMPLAINT OF A SPECTATOR WHO WAS
"MOONING" THE BLEACHER CROWD.
On August 17, Deputy Sheriff Thomas Malecki submitted the following
NAME: Deputy Sheriff I Thomas M. Malecki IA # 98-275
DATE OF REPORT: August 17, 1998 BADGE NO:
My best recollections of the described events are as follows:
Dep. Lanowsky was my assigned partner on the day in
question, I think, (I worked
all 4 games of that particular series and all were high attendance affairs). Dep. Landowsky
was assigned to the traffic circle so I remained w/out a partner for a good portion of the
game. At some point I was in fact with Dep. Karlinski, complaint about the
5th or 6th inning.
Sgt. Leopold told Landowsky and I to keep an "eye" on Section A of the bleachers as there
seemed to be some "tension" arising there. Sometime thereafter Karlinski joined us. The
usual things were going on in the crowd and some persons (about 20-30 males) in Section C
were yelling "show your tits!"; the female at which this attention was directed was amused
at this and even "played" to the attention directed at her and was not offended.
At some point Karlinski left us. I noticed him at the end of a
bleacher ramp near
Section "C" talking with an individual who appeared to be somewhat irate; I walked down
there and this gentleman was demanding that Karlinski take action for some perceived
offense. Karlinski was calmly explaining that there were 50,000+ in attendance and that we
(deputies) could not devote all our attention to one person. This did not satisfy the
at which time I intervened that I and Dep. Karlinski were specifically assigned to Section A
because of impending problems there, but if he would point out the individual we would
advise him his alleged behavior, (we had not observed any of his allegations personally), was
unacceptable and if it continued he would have to either leave or be subject to arrest. This
did not satisfy the gentleman. He demanded that Dep. Karlinski arrest and/or specifically
watch the alleged offensive person. Again Karlinski explained that would be impossible. At
this point the already irate individual became even more angry and stormed off saying he was
leaving because he could not stand it any longer; he demanded Karlinski's name and badge
# which Karlinski provided. As the gentleman was leaving he said under his breath, "This is
fuckin' bullshit, I'm gonna get you, I'm outta here!" at which point Karlinski did say "Don't
let the door hit you in the ass on the way out!"
That's the best, clearest, and truest
recollection I have of this incident. I don't know
how long Karlinski inter-acted with the subject, but I was there at the most 10-15 seconds
when the above transpired.
On August 26, Capt. Zauner sent the following memorandum to the Office of
DATE: August 26, 1998
TO: Office of Professional Standards
FROM: Keith F. Zauner, Captain
SUBJECT: Complaint 98-275 Nicholas
I began my investigation into this complaint
by having Dep. Karlinsky respond in writing
to the complaint of Mr. Melville on 7/31/98. Dep. Karlinsky responded as requested in
writing. On page 2 of the complaint Mr. Melville referenced a remark allegedly made by
Dep. Karlinsky to his friend Steve Givens, "Officer Karlinsky told him to "not let the
him in the ass."
Karlinsky was asked as part of his response
to address this alleged remark. Karlinsky in
his report said, "At no time did I raise my voice, act in a disrespectful manner or state
let the door hit you in the ass on the way out."
Dep. Karlinsky indicated that Dep. Thomas
Malecki was his partner during this incident,
so I had Dep. Malecki respond to the complaint. I received Malecki's response dated
8/17/98. Dep. Malecki's response to the above referenced remarked, contradicted Dep.
Karlinsky's, "At which point Karlinsky said don't let the door hit you on the ass on the way
out." Dep. Malecki had no motivation to respond in anything but a truthful manner.
Dep. Karlinsky did not respond in a truthful
manner as required by department policy.
I am therefore adding the additional charges to the file:
1.05.35 Rule 35
Members are required to relate the truth,
whether under oath or otherwise.
1.05.46 Rule 46 Written
Reports must be accurate, complete and
must contain all pertinent information.
On September 29, Karlinsky submitted the following
NAME: Karlinsky, Nicholas James IA #
DATE OF REPORT: 09/28/98 BADGE NO:
On Saturday 09/26/98 at approx. 2030 hrs. I, Deputy
Karlinsky Badge No.
688, while in full uniform and assigned to work release in the Milwaukee County Jail had an
unsolicited conversation with Deputy Tom Malecki. Deputy Malecki told me that he had
written a "green bar" report for the Office of Professional Standards regarding an incident at
a Milwaukee Brewers baseball game on 07/11/98. Deputy Malecki told me that he wrote
what he remembered of the incident including the fact that I told a civilian who was attending
the game, "Don't let the door hit you in the ass on the way out." I asked Dep. Malecki
I really say that" and he said, "Yes, I heard you say it." I told Dep. Malecki that that I
don't remember saying that to the civilian. I immediately reported to Sgt. M. Schallau, who
was the operations sgt. at the above time, and requested permission to speak with Capt. J.
Feiten. Sgt. Scharlau asked me why I needed to talk with Capt. Feiten and I told him that it
involved some information I had put in a "green bar" report I had written to the Office of
Professional Standards. Sgt. Scharlau then called Capt. Feiten
and relayed my request to speak with her.
The reasons I wished to speak with Capt.
Feiten are 1. She is my shift commander and 2. Capt. Feiten was the officer who relayed my
original "green bar" report to Capt. Zauner.
I told Capt. Feiten that I had spoken with
Deputy Malecki and that, while I did not
remember making the statement to the civilian, Deputy Malecki remembered the statement
being made. I also told Capt. Feiten that I had put in my original green bar report that I had
not made the statement. I also told Capt. Feiten that I honestly do not remember making the
statement. Capt. Feiten told me that since it was the weekend, and there was no one in the
OPS office, that I should remind her on Monday 09/28/98 and that she would relay the
information I had given her to the OPS office.
On Monday, 09/28/98 at approx. 1600
hrs. Capt. Feiten told me that I should write
another green bar report and forward it to Capt. Carr.
It should be noted that the conversation
and the information I received from Deputy
Malecki was totally unsolicited and it should also be noted that I still do not remember
making the statement to the civilian at the Brewers game. I asked to speak with Capt.
and relay the information to her, because I believe it to be the right thing to do.
The report form on which Karlinsky wrote
bore the following notes:
The purpose of the report is to
solicit response that will assist in determining whether
disciplinary action is warranted, and the answers furnished may be use in disciplinary
proceedings that could result in administrative action against you, including dismissal.
All information relating to the
performance of official duties must be answered fully and
truthfully, and disciplinary action, including dismissal, may be undertaken if you refuse
to respond fully and truthfully.
Information gained by reason of
this report, as a matter of constitutional law, is not
admissible against you in any criminal proceeding.
On September 30, Deputy Malecki submitted the following handwritten
NAME: Deputy Sheriff I Thomas M. Malecki IA #
DATE OF REPORT: September 3,
1998 BADGE NO: 552
On Sat. 9/26/98 while working overtime
on 5E of the C.J.P. at around 2030 hour, I
escorted a prisoner from 5E to release for a T.D.T. Racine County. On arrival at release, I
had two conversations, one with the Racine County Detective as to how a friend of mine was
doing, he's a detective for Racine County, and another brief conversation with Deputy
In regards to my conversation with
Karlinsky, I off-handedly remarked to him if
anything had come about as to that stadium thing, only inquiring as to a resolution, and he
stated he had not heard anything. I then stated I wrote on it when I returned from vacation
in August and that I had confirmed that he (Karlinsky) did say what the complainant had
accused him of saying because I heard it. At that point we both agreed that since no
resolution had been determined we would not talk about the incident further. Total duration
of conversation was 5-10 seconds at the most. I then returned to 5E to finish my shift.
On October 6, Police Services Bureau Captain Randy J. Tylke convened a
the purpose of imposing discipline. He prepared a written summary as follows:
MEETING FOR THE PURPOSE OF IMPOSING
Hearing Date: Tuesday, October
10, 6 1998
Time: 2:00 p.m.
Nicholas J. Karlinsky, Deputy Sheriff I
Union Representation: Jeff Stevens
Sheriff's Office Staff: Captain Randy
Reference: OPS Case #98-275
Hearing By: Randy J. Tylke,
On Tuesday, October 6, 1998, I convened a
hearing into the above captioned matter. I
explained the issue that was the subject of the hearing. Deputy Karlinsky is accused of
violation of several rules, those to include Courtesy and Civility, Efficiency and
False Information, Truthfulness and Written Reports.
Following a review of the pertinent facts, I
asked Deputy Karlinsky if he had any
explanation for the facts in this case, and the fact that after he found out that his partner
a report contrary to his, he then wrote a second report that is included in this file that says
that he may not have been courteous, but still does not remember saying the statement in
Several times during the meeting, Deputy
Karlinsky insisted that he could not remember
making a derogatory remark to a citizen, however he continued to say that he used bad
judgment if he said it so that a citizen could hear it. He also stated that after talking to
Deputy Malecki and being assured that he said it, it must have occurred.
I suggested to Deputy Karlinsky that it
seemed strange that he could remember all the
details of this incident, except telling the citizen "don't let the door hit you in the ass on the
way out." It also seemed strange that he felt a need to write a second report, only after
talking to Deputy Malecki about the contents of Deputy Malecki's report. I explained to
Deputy Karlinsky that the charges of Untruthfulness and False
Information are serious
allegations. Deputy Karlinsky continued to profess that he now believes that the incident
happened, but he could not remember it.
I asked him if he had anything to add for
his alleged behavior and the reports written. He
stated that to the best of his knowledge, they were true and accurate at the time they were
written. I explained to him the necessity that all reports be truthful and that this hearing was
to make a recommendation for discipline; that the discipline could in fact include discharge.
The meeting was concluded at 2:20 p.m.
On October 8, Tylke sent to Sheriff Leverett Baldwin the
OFFICE OF THE SHERIFF
POLICE SERVICES BUREAU
Date: October 8, 1998
To: Leverett Baldwin, Sheriff
From: Randy J. Tylke, Captain
CASE #98-275, DEPUTY SHERIFF I NICHOLAS J.
After review of the enclosed file, and
having a meeting with Deputy Karlinsky and
Association Representative Jeff Stevens, I have determined the following:
Deputy Karlinsky did in fact make a
comment to a citizen at Milwaukee County Stadium
which was not civil or courteous. Deputy Karlinsky claims not to remember making the
statement, however, his partner does and wrote a report stating that fact. Deputy Karlinsky
wrote a second report after having a conversation with his partner in an attempt to clarify
he could not remember the circumstances. Deputy Karlinsky made a statement during the
meeting that he would not lie, however admitted that if his partner said it happened, then it
must have occurred. I find that Deputy Karlinsky was less than truthful in his first report
may have violated Rule 18 False Information and Rule 35
One must however take into consideration
the difficulty of dealing with fifty thousand
intoxicated fans at a Brewers/Cubs game, and the difficulty of dealing with
in the bleacher area. That however does not exonerate Deputy Karlinsky from telling the
truth and not remembering what he said and when he said it. Deputy Karlinsky has an
excellent work record and as a member of the CERT team in the jail, deals with difficult
people all the time.
I recommend that Deputy Karlinsky receive
an official written reprimand for violation of
Rules 15, 18 and 35; that the reprimand be placed in his file for a period of one year
removed if no other sustained cases of this nature occur.
Randy J. Tylke /s/
RANDY J. TYLKE, CAPTAIN
Police Services Bureau
On November 9, Police Services Bureau Deputy Inspector Jeff Zens sent to
Willie McFarland the following memorandum:
DATE: November 9, 1998
TO: Inspector Willie McFarland
FROM: Jeff Zens, Deputy
SUBJECT: Office of Professional Standards Case
After reviewing all of the facts presented in this case,
discipline recommendation, I offer an alternate recommendation.
There are two separate issues in this case. The first is the
substance of the original
complaint: Deputy Karlinsky's conduct and language at the stadium. The second issue
during the investigation, where he was not truthful in responding to the allegations raised by
the complaint. I believe each should be considered and acted upon separately.
A written reprimand would be an appropriate disposition for
first issue. Working
at the stadium, especially in the bleachers with a large crowd, is a difficult and occasionally
stressful assignment. While professional conduct is always expected, all deputies are human
and occasionally make mistakes.
However, the issue of truthfulness is much more serious.
Nothing in Karlinsky's
original reports suggests that he forgot anything: he flat out denied the complainant's
allegation. Only after his conversation with Deputy Malecki did he suggest that he may have
"forgotten" important details of the incident. This new-found memory is, at best, hard to
I recommend that when you consider discipline for this case,
your imposition should
be commensurate with that handed out in other, similar cases where truthfulness was the
issue. I do not know the entire range of sanctions which have been handed down in these
cases. However, I understand that there have been recent suspensions in the 5-8 day range
for similar circumstances. Such a disposition is appropriate in this case for the truthfulness
On December 9, McFarland, on behalf of Baldwin, approved a four-day
without pay. The Investigative Summary stated, in part, as follows:
MILWAUKEE COUNTY SHERIFF'S
||OPS CASE NUMBER: 98-275|
||EMPLOYEE(S): Nicholas Karlinsky|
This case was initiated
by a complaint from Mr. Melville that Dep. Karlinsky repeatedly
refused to address the concerns of Mr. Melville and his friends, relating to an unruly fan in
bleachers. The fan continued harassing them throughout the game. Mr. Melville admitted
to me that he and his friends (all Cubs' fans) had been drinking. Scott Jenkins, Brewers
told me that Mr. Melville did not appear to be intoxicated and was quite disturbed by
Karlinsky's actions when he spoke to him as they were leaving the Stadium. Mr. Melville
stated that Karlinsky repeatedly told him that there was nothing he could do, unless he saw
the violation and he could not watch one fan out of 50,000. Mr. Melville felt Karlinsky
should have done more. Mr. Melville stated in his complaint that his friend Steve Givens
spoke to Karlinsky before they left the Stadium, to relay their dissatisfaction with his
of the situation in the bleachers. Melville went on to state that Karlinsky said, to Mr.
"don't let the door hit you in the ass", as they were leaving.
Dep. Karlinsky in his report justified his
inaction due to the crowd size and the number
of rowdy fans in the bleachers. This was an extremely large crowd and Chicago fans can be
disruptive. However, Karlinsky could have at least talked to the subject they were
complaining about, even if he didn't personally see the violation. He could have talked to
ushers himself, rather than wait for them to come to him.
Karlinsky's handling could have been better,
but it was based on his judgement at the
More disturbing is the fact that Karlinsky
specifically and vehemently denied being
discourteous or to saying "don't let the door hit you in the ass" to Mr. Givens. However, on
the report of his partner Dep. Thomas Malecki and my interview with Scott Jenkins, Brewers
V.P. (who spoke to Melville as he left the Stadium and verified the remark with an usher
was working in the bleachers); Dep. Karlinsky did in fact make the remark in question and
lied on his report.
Therefore, based on this information, I feel Karlinsky's credibility
in this case is seriously
compromised and he is guilty of all violations as listed.
Attached to the Notice of Suspension was a statement of
reasons, as follows:
On July 11, 1998, while assigned to security at a Milwaukee
Brewer's game, Deputy
Nicholas J. Karlinsky engaged in conduct that violated Milwaukee County Sheriff's
Department Rules and Regulations pertaining to courtesy civility by stating to a fan at the
game, who had requested his assistance, "Don't let the door hit you in the ass." When
to write an incident report concerning his involvement with this fan, Deputy Karlinsky denied
ever making such a statement. Deputy Karlinsky later learned from his partner, during the
time of the incident, that his partner recalled him making that statement. He then admitted
it was possible that he could have made that statement and his initial report was untruthful.
Based on the aforementioned, Deputy Nicholas J. Karlinsky was found to be in violation of:
MILWAUKEE CO. SHERIFF'S DEPT. RULES AND
1.05.15 RULE 15 COURTESY AND CIVILITY
1.05.14 RULE 14 EFFICIENCY AND COMPETENCE
1.05.18 RULE 18 FALSE INFORMATION
1.05.35 RULE 35 - TRUTHFULNESS
1.05.46 RULE 46 WRITTEN REPORTS
MILWAUKEE COUNTY CIVIL SERVICE RULE
(L) REFUSING OR FAILING TO COMPLY WITH DEPARTMENTAL WORK
RULES, POLICIES AND PROCEDURES
(T) FAILURE OR INABILITY TO PERFORM THE DUTIES OF ASSIGNED
(Y) FALSIFICATION, MODIFICATION OR UNAUTHORIZED ALTERATION
OF ANY COUNTY REPORT OR RECORD
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the Association
asserts and avers as follows:
Deputy Karlinsky's alleged comment was not discourteous or
uncivil under the
circumstances, which involved the kind of intemperate, unruly and aggressive fans who
typically attend baseball games between the Milwaukee Brewers and Chicago Cubs. When
a Cubs fan who had been drinking and was already angered by perceived problems with
another fan approached Deputy Karlinsky, the grievant reacted calmly even as the citizen
stormed off making obscenities and threatening the deputy. It was then that Deputy
is alleged to have said, "Don't let the door hit you in the ass."
While Deputy Karlinsky has no memory of
this, even if he said it, it cannot be taken out
of context. In the entirely of this unique scenario, Deputy Karlinsky's behavior was
and civil. Thus, he did not violate departmental rules regarding courteousness and civility.
Testimony established that, over the past 30 years, the Department has never considered a
comment akin to that attributed to Deputy Karlinsky as sufficient to warrant punishment for
incivility and discourteousness.
Further, Deputy Karlinsky was not
untruthful when he consistently maintained that he had
no memory of making the statement cited above. It is of course not a lie not to disclose
something one has no memory of doing. Indeed, because Deputy Karlinsky had no memory
of making the statement, it would have been untruthful for him to represent that he, in fact,
An arbitration award upholding the
discipline will set a precedent under which deputies
should write reports after consultation and consensus among other witnesses, when they
should be writing reports as they remember events occurring. A difference in reports simply
means different memories, not that one of the deputies or the other is lying.
Finallly, the punishment is excessive; even
if the arbitrator concludes that punishment is
warranted, it should be reduced. Deputy Karlinsky's supervisor believed the appropriate
punishment should be an official reprimand, to be removed if Deputy Karlinsky engaged in
no similar conduct for a period of a year. If the arbitrator concludes that Deputy Karlinsky
violated the rules cited in Order #269, that would be the appropriate punishment.
In support of its position that the grievance should be denied, the County asserts and
This case is simple and the facts not in
dispute. In repeatedly failing to respond to a
legitimate request by a citizen for service Karlinsky was neglectful of his duty. Even
according to Karlinsky, the conduct of an unruly fan was such that some response was called
for. Karlinsky did not respond at all; he neither provided a response himself, nor called
another deputy to assist, nor even ask an usher to intervene. Karlinsky was not the object of
any fan abuse, and had no other calls for service which prevented him from appropriately
dealing with the citizen's complaint. Karlinsky was called upon to take action and did
Department Rule 14, Efficiency and
Competence, requires deputies to perform reasonable
aspects of police work. As Karlinsky knew, compliance is mandatory, not optional. He did
not comply with the rules.
Further, the dispute language toward the
citizen happened. Karlinsky denied it at first,
then backtracked when confronted with corroboration by Deputy Malecki. Karlinsky
volunteered for duty to get out of the jail and into an environment where he could deal with
members of the public. Dealing with the citizen complainant in the fashion he did was
as even Karlinsky belatedly acknowledged.
By his verbal conduct, Karlinsky violated
Rule 15, Courtesy and Civility. This rule is also
couched in mandatory terms; courtesy and civility are not optional, but are demanded.
Karlinsky knew the rule; he violated it.
Finally, untruthfulness is a grave
disqualification for service as a law enforcement officer.
It is imperative that officers be truthful. The entire system supervisors, prosecutors,
courts hinge upon the character and credibility of officers.
Karlinsky lied. While his fib will not upset
the balance of nature throughout the universe,
its import must not be minimized
Following receipt of the County's brief, the Association wrote to
me as follows:
The Association will not submit a reply brief in the above
grievance. Although the
County's brief mischaracterizes Deputy Karlinsky as a liar despite his testimony, which is all
that the Arbitrator should consider on the issue, the Association adequately stated its position
in its initial brief.
By their stipulated statement of the issue, the parties have placed two questions before
me: Did Deputy Karlinsky violate the work rules as alleged? And if so, was his punishment
a four-day suspension reasonable?
There are no jurisdictional issues, questions of contract interpretation, or challenges
to the work rules themselves. My task is only to understand the facts in the record and
the stated standard.
That standard is categorized by common sense and sound thinking. The quality of
being reasonable, the American Heritage Dictionary explains, is to be "not excessive or
extreme; fair; moderate."
Because reasonableness is also defined by the comparison of one action or condition
to another, it is also useful to note at the outset other disciplinary matters involving these
The Association presented testimony from a veteran business agent and former deputy
that he had "never seen" discipline as severe as a four-day suspension "for something like
this." The record in this proceeding, of course, does not contain the entirety of the
department's disciplinary proceedings, and the parties themselves declined to cite in their
briefs any prior examples.
The WERC records do reflect those grievances over discipline which have come
before staff arbitrators. 1/ One in particular is of note, a prior suspension which arose out of
1/ These grievances include Milwaukee
County (Sheriff's Department) Cases
298, 325, 425, 426 and 463.
encounter between a Milwaukee County Deputy Sheriff and a fan attending a baseball
Milwaukee County (Sheriff's Department), Case 463, No. 56851, MA-10435 (Jones,
1998). In that case, the arbitrator sustained a three-day suspension of a deputy who twice
violated department rules on providing name and badge number, including during one
encounter at a McGovern Park baseball game.
After an investigation, the Milwaukee Sheriff's Department found that Karlinsky had
violated several departmental rules and regulations, including those on efficiency and
competence, courtesy and civility, truthfulness and reporting standards. It also determined
he violated countywide Civil Service rules relating to failure to perform assigned duties,
falsification of a report, and refusing to comply with departmental work rules.
In its imposition of the discipline, the County gave separate consideration to the two
aspects of the incident, namely Karlinsky's conduct at Milwaukee County Stadium and his
actions during the investigation.
Here is what the facts in the record establish:
Deputy Karlinsky volunteered for overtime for the sold-out Milwaukee
Brewers-Chicago Cubs game at Milwaukee County Stadium on July 11 1998, and was
supplemental security in the outfield bleachers. Sports fans from Wisconsin and Illinois
manifest an attitude of antipathy towards each other, and there was a boisterous tension in
the stands that summer day. Like many patrons, the situation was further fueled by too
beer, leading to several arguments, fights, and at least one reported occurrence of a spectator
showing his buttocks to the crowd.
During the game, one drunk jerk in particular got excessively annoying
sexual come-ons to young women, physically assaulting Cubs fans, throwing beer. A patron
whose party the Brewers fan had assaulted finally sought Karlinsky's help in ending the
Karlinsky advised the patron, Melville, there was really nothing he, Karlinsky, could
do in such a crowd.
Melville and his party expressed to Karlinsky their dissatisfaction that he wouldn't
take action, and indicated they'd be seeking support elsewhere. To this, Karlinsky replied:
"Don't let the door hit you in the ass," possibly adding, "on the way out."
The citizen filed a formal, written complaint against Karlinsky, which the department
promptly investigated. During the investigation, a Police Services Bureau Captain asked
Karlinsky to "pay particular attention" to five specific questions, including whether he made
the comment, "don't let the door hit you in the ass on the way out."
In a typed statement of more than 800 words, Karlinsky wrote, "at no time did I raise
my voice, act in a disrespectful manner or state, 'don't let the door hit you in the ass on the
way out.'" Contrary to the Association's position at hearing that Karlinsky "consistently
maintained that he had no memory of" making the offending comment, this is an express and
explicit denial of making the comment. His formal, written answer wasn't that he couldn't
remember; it was that he didn't say it.
A few weeks later, a deputy who was temporarily partnered with Karlinsky during
incident submitted his written statement, in which he quoted Karlinsky as making the
comment. The other officer, Deputy Malecki, put the incident in the context of the
complaining Cubs fan himself irate, unreasonable and profane.
Subsequently, believing that Malecki's statement established that Karlinsky had been
untruthful, Capt. Zauner added two new charges against him, relating to truthfulness and
Precisely a month later, Karlinsky and Malecki encountered each other while on
Saturday duty at the Jail. During a brief conversation, Malecki mentioned to Karlinsky that
he, Malecki, had confirmed for investigators that Karlinsky did indeed make the disputed
Karlinsky immediately reported this conversation to an appropriate supervisor, who
advised him to file a supplemental report, which he did that Monday. In his supplemental
statement, Karlinsky maintained he still could not recollect making the comment to Melville,
but acknowledged that Malecki says he heard it.
During a disciplinary hearing before Capt. Randy Tylke, Karlinsky again
acknowledged he had made the comment, but maintained his written denial was truthful
because he honestly did not remember having made the comment at the time he wrote the
report. Indeed, as evidence of his truthfulness, Karlinksy cited the fact that he still could not
remember having made the comment that Malecki heard him make.
Capt. Tylke found that Karlinsky had made a comment which was "not civil or
courteous," and that his non-recollection established that he had been "less than truthful in
his first report and may have violated" rules 18 (false information) and 35 (truthfulness).
discipline, Tylke recommended an official written reprimand, to be removed after one year
if no other sustained cases of this nature occur.
Police Services Bureau Deputy Inspector Jeff Zens believed that recommendation was
too lenient. While endorsing a written reprimand for Karlinsky's performance in not
responding to Melville's initial complaint, Zens found the issue of Karlinsky's truthfulness to
be "much more serious." Believing that there had been recent suspensions in the range of
days, Zens recommended such a disposition as appropriate for the untruthfulness he felt was
at issue here.
The Sheriff's designee, Inspector Willie McFarland, thereafter determined that
Karlinsky was guilty of all violations charged, and approved a four-day suspension.
Those, then, are the facts. How do they measure against the standard of "fair,
The first issue is Karlinsky's conduct on July 11, 1998. One would think that a
Milwaukee County Deputy Sheriff in full uniform would be seen as a legitimate authority
figure, even in the cauldron of beer and sun that is the outfield bleachers on a summer's day.
I understand that Brewers/Cubs antagonisms may have increased the intensity at the
but devotees of the national pastime have not yet started acting like soccer hooligans from
the United Kingdom; one would hope and expect that a sworn law-enforcement officer would
be effective in preserving peace among patrons.
Such hopes and expectations, however, would only be valid when the office in
question took some steps to act in a law enforcement capacity. Yet the Union says the
and intemperate crowd cowed Karlinsky, and accounted for any inadequacies in his
I find that defense difficult to accept.
By his own testimony, Karlinsky has "major supervisory responsibilities" as a
second-shift supervisor on the emergency response team in the County Jail. A deputy trained
respond to crises in the overcrowded jail and entrusted with supervisory
so doing -- simply should not have felt unduly pressured or stressed by the situation in the
Milwaukee County Stadium bleachers that day.
The Department and the public have a right to expect a certain level of
from a deputy sheriff. Karlinsky failed to meet that level. By his failure to perform the duties
of his assigned position, he violated Milwaukee County Civil Service Rule VII (4)(1)(t).
by not adequately performing reasonable aspects of police work consistent with the ability of
equivalent trained members of the department, he violated the Sheriff's Department Manual
Rule 1.05.14, Efficiency and Competence.
The Department and the public also have a right to expect a degree of courtesy and
civility from a deputy sheriff. Indeed, the departmental manual states that such attributes are
"demanded of all members of the department," and that "conduct to the contrary will not be
Certainly, the pressures on a law enforcement officer are among the most serious of
any profession; each shift holds the likelihood of stress, the threat of danger. It's a tough and
dangerous job, and there are some bad people out there who want to make it tougher and
more dangerous. So it is well understood that situations arise, such as a crime or accident
scene, or while an officer is in pursuit, when deputies have more important matters to attend
to than being ideal conversational partners.
But the County Stadium bleachers on a summer's afternoon is not a time when the
stress and danger is so high that it could be considered courteous and civil to say to civilian,
"don't let the door hit you in the ass on the way out." The Association contends that within
the "entirety of this unique scenario," Karlinsky was being courteous and civil when he said
this. He wasn't, and thereby violated Department Manual Rule 1.05.15, Courtesy and
These violations, though, would not justify the four day unpaid suspension. But far
more serious that Karlinsky's making the statement is the issue of his denial that he did so.
The parties do not need a lecture from me on the vital necessity of truthfulness and accuracy
on the part of deputy sheriffs; suffice it to say that the legitimacy of the entire criminal
system depends, in large part, on those attributes.
Details in a deputy's report can affect the lives and economic standards of countless
people; the power of a deputy's testimony can send a person to prison. A deputy who lies,
or even one who files an incomplete report, is as much a threat as any criminal.
The department has charged Karlinsky with making a false report, a lack of
truthfulness, and filing a written report that was inaccurate and incomplete. A four-day
suspension would be a "not excessive or extreme; fair; moderate" level of discipline for any
one of these charges, if proved.
Karlinsky swears he didn't lie, but honestly can't remember uttering the phrase which
both his partner and the complainant clearly heard. That's his story, and he's sticking to it.
To conclude that someone has lied has intentionally told an untruth --
depth of understanding that I do not possess in the instant case. It is easy, however, to
determine whether a report is accurate or not, because such a conclusion does not depend on
intent, only content.
Karlinsky told Melville, "don't let the door hit you in the ass on the way out."
Karlinsky filed an official written statement affirmatively denying he made that statement.
I do not know if such a statement constituted the filing of a false report and demonstrated
untruthfulness. But I do know that the report was not accurate and complete, and did not
contain all pertinent information. By filing such a written report, Karlinsky violated
departmental rule 1.05.46.
Such a conclusion is implicit in Karlinsky's own admission that Malecki's statement
shows that he must have made the comment, even if he couldn't remember it. And such a
conclusion is sufficient to justify a four-day suspension and deny the grievance.
Accordingly, on the basis of the collective bargaining agreement, the applicable rules
and regulations, the record evidence and the arguments of the parties, it is my
That the grievance is denied.
Dated at Madison, Wisconsin this 5th day of August, 1999.
Stuart Levitan, Arbitrator