BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CALUMET COUNTY COURTHOUSE
EMPLOYEES LOCAL 1362, AFSCME,
(Lisa Fox Grievance)
Ms. Helen M. Isferding, District Representative, Wisconsin
Council 40, AFSCME, AFL-CIO, 1207 Main Avenue, Sheboygan, Wisconsin 53083 on
behalf of the Union and the Grievant.
Mr. Charles E. Carlson, Carlson Dettmann Associates, LLC.,
901 Demming Way, Suite 201, Madison, Wisconsin 53717-1920, on behalf of the County.
According to the terms of the 1998-2000 collective bargaining agreement between
County (County) and Calumet County Courthouse Employees, Local 1362, AFSCME,
(Union), the parties requested that the Wisconsin Employment Relations Commission
member of its staff to hear and resolve a dispute between them regarding the termination of
The Commission designated Sharon A. Gallagher to hear and resolve the dispute. Hearing
scheduled and held on January 25, 26, 27 and 28, 1999 at Chilton, Wisconsin. A
transcript of the proceedings was made and received by March 4, 1999. At the hearing, the
agreed that the Arbitrator would follow Commission policy regarding when to issue the
herein. The parties' initial briefs were
received by the Arbitrator by May 20, 1999 and were exchanged by the
Examiner thereafter. The
parties filed their reply briefs herein by June 29, 1999, whereupon the record in this case
The parties stipulated that the following issue should be determined in this case:
Did the Employer violate the collective bargaining agreement
when it terminated Lisa Fox on July
29, 1998? If so, what is the appropriate remedy?
ARTICLE VII MANAGEMENT RIGHTS RESERVED
7.01 Unless otherwise herein
provided, the management of the work force and the direction
of the working forces, including the right to hire, promote, transfer, demote or suspend or
discharge for proper cause, and the right to relieve employees from duty because of lack of
other legitimate reasons is vested exclusively in the Employer. If any action taken by the
is proven not to be justified, the employee shall receive all wages and benefits due him for
of time involved in the matter. . .
STIPULATIONS OF THE
The parties stipulated that the grievance is properly before the Arbitrator. They also
stipulated that as of the date of her termination, the Grievant's rate of pay was $13.03/per
The County (with a population of 37,000) operates a Child Support Agency which is
responsible for enforcing child support orders issued by courts. The County has a
arrangement with the State of Wisconsin to assure that the responsible parent is paying
child support, and the State in return has an elaborate set of rules and regulations which it
the County child support workers to apply to their cases. The County's Child Support
has approximately 1400 open child support case files. The Agency collects approximately
dollars annually in child support payments. The Agency is currently staffed by 2.5 FTE
Specialists, 1.25 FTE Child Support Clerks, and two FTE Secretaries. Melanie Buchinger is
Corporation Counsel for Calumet County as
well as the Child Support Agency Director. Buchinger has held the CSA Directorship
1998. The County receives both State and Federal funds and is required to comply with
and regulations as well as Federal rules and regulations in order to continue receiving these
As a general matter, the County requires individuals to pay a $10.00 fee to begin the
of County assistance to locate a parent, determine paternity, support and/or health insurance
issues for minor children must. The CSA and/or District Attorney's offices then take over
The Corporation Counsel/CSA Director represents the CSA in all the civil litigation. If
need to be filed and pursued, the local District Attorney and his office handle those cases for
CSA. Notably, the District Attorney has been successful in charging a separate felony for
each four-month period of a payor's failure to pay child support. The District Attorney has
to prosecute these cases. Section 48.63, Stats., limits information which child support
release. This section also provides for a monetary fine or imprisonment for violation of this
48.63 Limitation on giving
Information. Except as provided under s. 49.32(9), (10) and
(10m), no person may use or disclose information concerning applicants and recipients of
funded by a relief block grant, aid to families with dependent children, Wisconsin works
49.141 to 49.161, social services, child and spousal support and establishment of paternity
under s. 49.22 or supplemental payments under s. 49.77 for any purpose not connected with
administration of the programs. Any person violating this section may be fined not less than
more than $500 or imprisoned in the county jail not less than 10 days nor more than one
year or both.
The State of Wisconsin also provides the CSA with Procedures which the CSA is
contractually bound to follow and which read, in relevant part as follows regarding
2.1 What is Confidentiality?
Information about child support, spousal
support or maintenance (alimony), and paternity cases
must be kept confidential. The nature of IV-D case work is such that a great deal of
information regarding custodial persons (CPs), noncustodial parents (NCPs), children and
fathers is collected. It is the child support agency's (CSA's) duty to protect this information
ensure that it is used only for IV-D program purposes. Child support staff should discuss
with authorized personnel and only when necessary to administer the program.
3.5 Prohibited Disclosure
Federal regulations prohibit disclosure to
any committee or legislative body (federal, state, or
local) of any information that identifies any applicant or recipient by name, or by name and
Without proper written authorization, the CSA is prohibited from
disclosing information from
a case record to:
* The new spouse or a
relative of the parties in the case.
* A private individual
or business that is usually related to business or personal matters,
such as bill collecting.
* An official or
individual not connected with the CSA, who requests privileged
All CSA employes receive a set of the State Procedures Manual and they have access
to copies of
the State Statutes. (Fox had copies of these documents). Each year, the State of Wisconsin
County put on various training programs for CSA employes. Fox participated in these
which confidentiality was discussed from time to time. Fox's job description as well as the
analysis questionnaire for her position also stated the requirement that she keep child support
Fox's Job Questionnaire read, in relevant part, as follows:
. . .
ESSENTIAL ACCOUNTABILITIES Maintain high degree of confidentiality
on all cases at all times
EXPECTED OUTCOMES (RESULTS) Privacy of parties is protected. County
is protected from legal repercussions.
HOW ARE OUTCOMES EVALUATED Number of lawsuits brought against
. . .
The County also has a policy manual, Chapter 3 of which reads, in relevant part, as
SECTION 1 GENERAL EMPLOYMENT
. . .
1.07 Conflicts of Interest and Misconduct
. . .
B. No employee shall commit
any of the following acts:
. . .
2. Perform an act which he knows is in
excess of his lawful authority or which he knows
is forbidden by law to do in his official capacity.
3. Whether by act of
commission or omission, exercise a discretionary power in a
manner inconsistent with the duties of his office or employment or the rights of others
and with intent to obtain a dishonest advantage for himself or another;
. . .
C. Any employee that commits any of the above
prohibitive acts may be subject to discipline
pursuant to the Discipline and Discharge Section of these Personnel Policies and Procedures.
. . .
SECTION 4 DISCIPLINE AND
4.01 Cause for Discipline or Discharge
No employee, after having successfully completed
his probationary period, shall be disciplined or dismissed from County employment without
Listed below are examples of behavior or actions which shall be sufficient cause for
A. Incompetence or inefficiency in the
performance of duties.
B. Physical or mental
C. Any use of, or working while under the
influence of, intoxicating beverages while on
duty unless authorized by the Department Head for undercover work.
D. Conviction of a
felony, misdemeanor, or ordinance violation involving morality.
E. Willful misconduct
F. Carelessness and
negligence in the handling or control of County property or the
unauthorized appropriation of County property for their own use.
insulting, abusive or inflammatory conduct toward the public, an
employer or fellow employee.
I. Abuse of sick leave
J. Acceptance of bribes.
K. Proven dishonesty in
performance of duties.
L. Willful falsification
of a time card.
M. Sleeping during
N. Leaving job without
O. Violation of County
4.02 Disciplinary Procedure
Discipline shall be applied to all County employees for
violation of the Personnel and General Administrative Policies. Prior to taking any
the County shall conduct an adequate investigation, prepare a list of potential violations,
copy to the employee for comment, and meet with the employee to discuss the allegations
response. If the alleged violation so seriously undermines the confidence of the County in
employee's ability to perform their duties, the Administrative Coordinator may approve
of the employee with pay until the investigation is complete and the employee has an
respond to the allegations. Normally, discipline is given in the following
A. First offense the employee will be
given a verbal reprimand in private. The
Department Head or immediate supervisor shall give the employee the reason for
being disciplined and also the manner in which the employee shall correct his problem
in the future.
B. Second offense the employee shall
be given a written reprimand with a copy to the
Administrative Coordinator and the Committee Chair. The written reprimand shall
be signed by the Department Head or immediate supervisor and by the employee who
is acknowledging receipt. A copy shall be provided to the employee and give the rule
or policy broken and a manner to improve performance. Written reprimands shall be
placed in the employee's personnel file.
C. Third offense
the employee shall be suspended without pay, or demoted, by the
Department Head. Suspensions shall be discussed with, and approved by, the
Administrative Coordinator before such actions are taken.
D. Fourth offense
the employee may be discharged by the Department Head and the
Administrative Coordinator, followed by a letter to the terminated employee and
placed in his personnel file. The Administrative Coordinator shall notify the Chair of
the Home Committee of the intention to suspend or discharge. The Salary and
Personnel Committee will be informed of suspensions and terminations.
4.03 As indicated above, this is normal
procedure for discipline, however, in situations where
the act of the employee is so severe, the employer may advance the sequence in the
procedure, or demote the employee, after review with the Administrative Coordinator and the
. . .
Lisa Fox became a County employe in April, 1983. In 1986, she transferred to the
in 1987 she was promoted to the position of Child Support Specialist, the position she held
termination onJuly 29, 1998. In August, 1995, CSA Director
Buchinger nominated Fox for the Child
Support Worker of the Year Award with the State of Wisconsin Child Support Enforcement
Association. The memo in which Buchinger nominated Fox for this award read, in relevant
. . .
I would like to nominate my senior child support specialist, Lisa
Fox, for child support worker
of the year. Lisa is an eight year employee of the Child Support Agency and has really done
This year, Lisa implemented our criminal felony for non-support
program. First, she convinced
the District Attorney's office of the need to prosecute non-paying parents criminally. (No
Then, she created a system where cases were prepared for the District Attorney's Office
histories done, arrears verified, employment information gathered and collated, potential
explored and defused, and previous court actions reviewed and summarized. She then drafts
criminal complaint, organizes all of the information so that the D.A.'s office can follow the
and meets with the D.A. for signature. She appears as the main witness for the State
court hearings and conferences. She then determines the recommendation for sentencing.
after conviction, she follows up with probation and parole officers to make sure the terms of
probation are met and child support is paid.
This has been a very time consuming and
frustrating process. The D.A.'s office often changes
its mind as to what it wants, how it wants the information presented. The probation and
officers often need to be prompted to complete the follow through. Throughout it all, Lisa
diligently and doggedly persisted. The effort has proved to be worthwhile. This year we
about 20 criminal felonies for non-support. Most of the criminal defendants are now paying
in on a
regular basis. Lisa also contacted the local newspaper and asked the paper to print the
for non-payment and the penalties. The effect is that many non-paying parents suddenly feel
to pay regularly. It has been a very effective and well thought out campaign.
. . .
The last annual evaluation Lisa Fox received was completed at the end of January,
the most part, Fox received high marks regarding her quantity and quality of work, but
made negative comments regarding Fox's interpersonal skills and attitude. Some of the
placed on Fox's evaluation read, in relevant part, as follows:
. . .
Other Comments: In terms of quality, quantity of
work, Lisa has no equal. She works very hard,
and produces quality work.
Areas of Concern: (1)
Interpersonal skills: If possible, Lisa's interpersonal skills have
deteriorated over the last 2 yrs. It's as if she no longer cares about trying to promote a
environment. When she's angry, the secretaries, other specialist, other members of the
employees, public and me, all suffer.
I do not mean to imply that this is a daily problem. It is very
cyclical in nature. It happens
several times a year and lasts for a few weeks. Then it disappears again. My concern is
times are becoming more frequent. Lisa is unrepentent about them. This needs to be
(2) Assignment of work to
support staff: Lisa's aware of this and appears to be working on
consistently assigning work.
(3) Grammar: A grammar class would benefit Lisa
Overall, I can no long (sic) define Lisa as a
"very good employee". I can say that I am pleased
with her work product and volume. I cannot say that I am pleased about her attitude and
interpersonal skills. She appears to be aware of (sic) problem. I will strongly urge her (sic)
it. Failure to do so will result in some serious consequences.
Fox did not object to the contents of this evaluation. As of
date of her termination, Fox
had a clean work record, a written warning regarding Fox's office attire having been
her record after she grieved it.
On May 15, 1998, Fox and her fiance, Paul Roberts had spent the day landscaping in
yard and decided to go out to dinner after cleaning up. They then went to the Central House
they had two drinks and thereafter had dinner. They then had two after-dinner drinks at the
House and, as the Central House was closing, they decided to go out for more drinks with
they had met at the Central House, Dale and Ellie Hinz. 1/
1/ Neither Dale nor Ellie Hinz
testified in this case.
After the Central House closed, the group went to Crazy's Bar and had one drink.
then went to Cheers Bar, arriving at approximately 12:45 a.m. Shortly after the four
Barnett, a bar patron, pulled out a long earring from Fox's ear as she walked past Fox. At
Fox told Ellie Hinz that "Dana has a problem with her father never paying child support, and
takes it out on me." Friends of Dana Barnett heard this comment and told Dana who then
Fox in the face. Fox went down to the floor after the blow. Paul Roberts took Lisa Fox out
bar at this point. After Roberts, Fox and the Hinzes left the bar, they stood outside talking.
came up to Fox again. Fox pushed
Barnett and Barnett hit Fox. Lisa Fox began yelling for help and ran out into the street
when she saw
Officer Walter Pendel's squad car driving by. Fox waived for Pendel to stop and Fox
in through the driver's side window of Pendel's squad car, very upset. 2/ Fox
2/ Fox specifically denied climbing
into Pendel's squad car through the driver's side window
and stated that she only leaned in the window. Fox also stated that she did not give her
to Pendel because she does not like him.
told Pendel that Dana Barnett had hit her. Officer Pendel convinced Fox to remove
her upper body
from his squad car so that he could pull his car over and park it. Pendel then interviewed
to the fight between Fox and Barnett but decided that as most were intoxicated and very
investigation should occur another time. Pendel then told Fox that she should go home and
would be contacted regarding whether she wished to file a complaint. Officer Pendel stated
was intoxicated when he spoke to her on May 16th.
After giving it more thought and speaking again to Officer Pendel and to Officer
and giving Seipel a statement regarding the incident (at 4:30 a.m. on May 24, 1998), Fox
formal complaint against Barnett. 3/ During her interview with Seipel, Fox
3/ Officer Seipel stated
that in the early morning hours of May 24th, when he arrived at Fox's
residence to take her statement, Fox had been drinking and, in his opinion, was too
told Seipel she was concerned about her job if she filed a complaint against Barnett and
were bad feelings between her and Barnett involving support payments from Dana's father.
statement to the police, Fox also stated that Fred Broker and Dale and Ellie Hinz were
the incidents with Barnett. 4/
4/ In her statement to the police as
well as in testimony herein, Fox asserted that Barnett's
sister, Jody Franzen, had also struck her. It should be noted that no complaint was filed
Franzen and that Franzen denied hitting Fox on the evening in question in her testimony
Fred Broker did not testify herein.
Sometime after Fox filed her complaint with the police, Dana Barnett called the
left a message for John Keuler, Administrative Coordinator, to call her back regarding Fox's
in Cheers Bar on May 16th. Keuler then investigated Barnett's complaint. Barnett told
she had had an altercation with Fox at Cheers Bar and that two other people heard Lisa Fox
Barnett a bitch and state that her father had not paid child support. 5/ Barnett indicated that
witnesses were Holly Pagel and Jody Franzen.
5/ It should be noted
that Barnett pled guilty to two counts of disorderly conduct arising out
of the fight she had with Fox on May 16, 1998 and that she paid fines in excess of
Keuler then called Franzen and Pagel who confirmed that the confrontation had
occurred as Barnett
had described it. Keuler then met with Corporation Counsel, Melody Buchinger, and set a
with Fox, Union President Ruth Diedrich, Buchinger and himself for June 17, 1998 to
complaint filed by Barnett.
As a result of the June 17 meeting, the County issued Lisa Fox a
warning letter which read,
in relevant part, as follows:
. . .
This is to confirm our discussion of June 17, 1998 with
John Keuler and Ruth Dietrich. John
Keuler received a telephone call about two weeks ago from someone who indicated that you
in a tavern in Chilton, intoxicated, and were discussing a child support case in a loud
story was confirmed by two additional people. You acknowledged that you did say
a child support matter to a non-party at that time.
This is a very serious matter. The
confidentiality of our records is of paramount importance.
Federal, state and agency rules prohibit disclosure of any information gained while employed
the Child Support Agency. You must never again discuss a child support case outside of the
This letter constitutes a written
warning and will be placed in your personnel file. If there are
further events of a similar nature, progressive discipline will be applied, up to and possibly
In addition, I would strongly encourage you to contact the
Employees' Assistance Program and
participate in an Alcohol and Other Drugs Assessment. I would further urge you to follow
on any treatment recommendations that may be made.
. . .
It should be noted that at the June 17 meeting, Lisa Fox admitted that she had
said that Dana
Barnett hated her because she had never gotten Barnett's father to pay child support.
stated that she had said this to her friend Ellie Hinz and not to Dana Barnett.
During the June 17 meeting, Keuler and Buchinger told Fox that if she
agreed to the warning
letter which would issue regarding the matter, that this would be the end of the case, and that
further investigation would be conducted by the County; but that if Fox chose to fight the
letter, that the County would hire a private investigator to look into all of the facts regarding
breach of confidentiality in child support cases over the years.
After the issuance of the June 17th letter, Lisa wrote
the County the following letter dated
June 28, 1998 which read, as follows:
. . .
This letter is to inform you that I have met with the
union and discussed the situation. I must
inform you I will not sign the letter received from you dated June 17, 1998. I do not agree
contents of the letter.
Please inform me if the letter has been placed in my
. . .
On June 29, Fox told Buchinger that she would not agree to the June 17 letter
and that she did not
want it in her personnel file; that she (Fox) had nothing to hide; that she was not an
that she was not going to have anything in her file that said that she was. As a result of
conversation with Buchinger and receipt of the above-quoted letter, the County decided to
Fox with pay effective June 29, 1998, pending a complete investigation of Barnett's
well as allegations that Fox had violated departmental confidentiality on other occasions as
The County then retained a private investigator, Kirk Moore, who
conducted an investigation
which he completed by approximately July 13, 1998. Kirk Moore is not connected to
in any way. Moore contacted Fox several times but Fox declined to give Moore a statement.
On July 23, 1998, the County held a meeting with Union
Representative Isferding and Union
President Diedrich, Keuler, County Representatives Carlson and Buchinger as well as Fox.
invited at that time to give a statement regarding the allegations that the County described
made against her. The County at this time advised Fox of the specific nature of the
against her, and that the County wished Fox to make complete and truthful answers to those
allegations. Fox declined to give any statements to the County regarding the allegations
her at that time. At this meeting, the County did not offer Fox a copy of Moore's
report regarding Fox's activities.
On July 27, 1998, the above-listed parties reconvened. At this time,
Fox denied all of the
allegations made against her except for the allegation regarding the Dana Barnett incident on
16 which Fox stated she had already answered in a previous meeting. Fox also stated that
not have a drinking problem. On July 29, Keuler, Buchinger, Isferding and Fox met again.
meeting, Fox again denied the allegations made against her and claimed that the allegations
made as a part of a vast conspiracy engineered by Dana Barnett. Fox also stated that she
intoxicated on any of the days outlined in the investigation, and that she did not have a
problem. Following the July 29 meeting, Buchinger issued the following letter to Fox,
in relevant part, as follows:
. . .
John Keuler received a telephone call from Dana Barnett
on June 5, 1998 complaining that you
were in a bar in Chilton on May 16, 1998 and were discussing her father's child support case
loud, intoxicated tone of voice. Dana provided John with the names of two additional
the incident. John checked with both of the witnesses who confirmed that the incident had
as Dana described.
A meeting was held on June 17,
1998 with Ruth Diedrich, John Keuler, you and me. At that
meeting, you admitted that you had discussed a child support matter with a non-party at the
evening. A discussion was held wherein you were offered the following:
1. You would admit that the incident happened as
described, a letter of written reprimand would
be placed in your file, and the matter would be concluded. The letter would contain a
urging you seek an alcohol assessment and follow through with any treatment
In addition, you would agree to cease and desist all further discussions of child support
non-parties. If you accepted this, the matter would be concluded. The County would
matter closed, and you would not file a grievance.
2. However, if you declined this resolution, the
letter would be withdrawn and an investigation
would ensue into the incident. You were further advised that the County was aware that
many unconfirmed rumors about you acting in a similar fashion that is, discussing
cases in public while intoxicated. In the past, these allegations had come up as unconfirmed
Since no one had ever come forward with first hand information, the matters were never
investigated. Nonetheless, these rumors were discussed with you each time I became aware
and you always denied them. You were told that the private investigator would investigate
all other complaints against you that were uncovered in his investigation of the Dana Barnett
At the conclusion of the June 17, 1998 meeting, you
accepted the letter of reprimand. A letter
of written reprimand was drafted for your personnel file consistent with the compromise as
On June 29, 1998, you advised me that you wished to
grieve the letter in your file as a result of
discussions with your Union Steward and Representative, and that you did not believe the
allegations contained therein were true. You were again advised that the result of
letter would be an investigation. You said you would take your chances with the investigator
because you did not believe the Dana Barnett matter happened as alleged. You were
pay on June 29, 1998, pending the investigation since the allegations were so serious that the
undermined the County's confidence in your ability to do your job.
The County hired Kirk Moore, a private investigator, with
Advantage Investigations, to look into
the matter. Mr. Moore conducted the investigation. A copy of his report has been provided
Union Representative, Helen Isferding.
The allegations fall into several categories:
1. Discussions With the Adult Children About Their
a. Dana Barnett indicated that in May, 1998 you
talked about her father's child support
case in a loud, intoxicated voice. Jody Franzen, Holly Pagel and Bob Cullen all verify that
this happened. Dana further stated that this is not the first time that this has happened. She
advised the investigator of several other incidents when this had happened. One incident
was reported to me, but it was unconfirmed. Bob Cullen, Wanda Nett and Jody Franzen
verify that this is not the first time that you had discussed her father's case while intoxicated
in the bar.
b. Jody Franzen also told the same story about
discussions of her father's child support
case on multiple occasions.
c. Jessie Hephner indicated that in January of 1998,
you approached him and discussed
his father's child support case with him. You were again intoxicated and called his father
2. Discussions About Their Own Cases:
a. Cynthia Flaherty indicated that about a year ago
you approached her in the Kloten
Oasis tavern, while intoxicated, and began to discuss her case in a loud, drunken tone of
voice. Ms. Flaherty indicated that several people heard the discussion and that she asked
you to stop talking about the case. She further states that she has heard you discussing other
men's cases, calling them "deadbeats" or wondering aloud why they weren't more worried
about their child support payments. She indicates that this happened approximately six
different times in the last two years.
b. Keith Oakley indicates that there was an incident
when you approached him,
intoxicated, and made a comment like What are you doing in a bar when you have
support arrears and are not taking care of your children?
c. Barry Brokaw indicates similar types of
statements were made to him on three
separate occasions. This occurred twice in taverns and once at an apartment party. The
comments Mr. Brokaw ascribes to you are What are you doing in a bar when you
making your child support payments regularly? In one incident, you allegedly slapped Mr.
Brokaw. Wanda Nett confirms these events.
3. Discussions of Other People's Child Support
a. Kurt Seefeld indicates that you discussed his
girlfriend's child support case with him
at a party last fall.
b. Terry Duchow indicates that last summer you told
him that you would take care of
his friend's (Bradd Theil's) child support case if Mr. Duchow would perform a sexual favor
for you. Again, you were reported to be in a state of intoxication.
4. Misuse of Position:
a. Kris Hauser indicates that she was a witness to
the bar fight that you had with Dana
Barnett. She states that she contacted you to discuss her child support case and that you
stated that you would expedite the case if she made a statement to the police.
5. Other Confirmatory Witnesses: The following
individuals have indicated to the investigator
that they have heard you, intoxicated, in a bar, discussing child support matters:
a. Michael Boll
b. Bob Cullen
c. Holly Pagel
d. Wanda Nett
6. Other Uncontacted Confirmatory Witnesses:
These individuals were identified as witnesses,
but were not contacted by the investigatory, as of today's date:
a. Norbert Schilling
b. Dale Hinz
c. Ed Lorenz
7. Abusive, Discourteous, Insulting Behavior
Toward Fellow Employees:
a. District Attorney Ken Kratz indicates that you
approached him at a party in June
1998, in a state of intoxication, and behaved in an insulting and discourteous manner to
b. Assistant District Attorney Heather Krause also
indicates that she was present at that
party and that you were in a state of intoxication. She further indicates that you were
hugging and kissing her in an insulting and discourteous manner.
c. Sheriff Oscar Beilke indicates that he also was
present at the party identified above
and that you were acting in drunken, insulting and discourteous manner to him and the
guests at the party.
d. Jailor Todd Konen also indicates that you were at
the above party in a state of
intoxication, and that you touched him in an inappropriate manner. Said behavior was both
insulting and discourteous.
e. Jailor Kurt Kohler also indicates that you did the
same thing to him at that party.
He also found it to be both insulting and discourteous.
f. Janet Johnson indicates that in May, 1998, you
approached her, in a state of
intoxication, and was verbally abusive to her. Your behavior was both insulting and
discourteous to her.
. . .
After a review of all of the
information, I believe that there is one theme running through all of
the events. You are abusing alcohol on a frequent basis and when you do, you violate the
confidentiality rules of this Agency. I believe that the greater weight of the credible
supports the events stated by the witnesses. I do not believe you when you say that these
not happen. I do not believe that there is a conspiracy against you orchestrated by Dana
Specifically, I believe that you have violated the
confidentiality rules as set forth in 45 CRF
303.21, et. al., Sec. 46.25, 46.93, Wis. Stats., Wisconsin Child Support Procedures,
Unit 3, and County policies. I find specifically that your behavior as set forth above also
the Calumet County Personnel and General Administrative Policies, Chapter 3, sec. 4.01(e)
misconduct; (g) Discourteous, insulting, abusive or inflammatory conduct toward the public,
employer or fellow employee; (j) Acceptance of bribes; and (o) Violation of County policies.
Further, because you have not provided a truthful account now or at earlier times when I
contacted your about the unconfirmed rumors, I conclude that you also have violated sec.
Proven Dishonesty in performance of duties. I find your actions to be
so severe that I am proceeding
under sec. 4.03, Chapter 3, Personnel and General
Administrative Policies, accelerated discipline.
The nature and the multitude of the violations are very
serious. Your behavior has opened the
County up to civil liability. Your own actions could be the basis for criminal and civil
However, in weighing the events, it is apparent that the recurrent theme in all of these events
abuse of alcohol on a consistent basis. This is a mitigating factor which I took into
in determining the appropriate discipline. I would very much like to see you get some help
problem. On the other hand, you cannot be allowed to be in a position where the County
has to rely
on your ability to keep protected information confidential.
Therefore, I, together with John Keuler, Wilma Springer
and Vern Gonzo (County Board
Member) offered to you the following options:
1. You would be placed on medical leave until you
completed an Alcohol and Other Drug
Assessment with an accredited AODA counselor. If a substance abuse problem was
A. You would follow through with all treatment
recommendations set forth by the
Counselor for a two year period, or until you were released from treatment by the
B. You would sign a release allowing the County to
monitor your progress with the
assessment and treatment plan.
C. Upon release back to work by the Counselor, the
next available position that you
were qualified for that does not involve confidential or sensitive information would be
D. This would be the end of the matter. There
would be no grievances or other legal
action taken by either party.
2. If you refused to complete the AODA assessment,
you would be terminated. You were given
until July 29, 1998 at 8:00 a.m. to make your decision as to whether or not you would
1. Further, if the assessment was done and no substance abuse problem was identified, you
also be terminated.
We have extended to you every
option available to resolve this matter in the least punitive
manner possible, given the severity of the violations. We offered to you a letter of
help before the investigation was begun. You refused that. We offered to allow you to
county employment if you would address your drinking problem. You have refused that.
allow the integrity of the County to be further compromised. Therefore, I must advise you
that it is
the edict of Vern Gonzo, John Keuler, Wilma Springer and myself, that we have no
to terminate you effective July 29, 1998.
This decision may be grieved under the terms of the
collective bargaining agreement between
Calumet County and the Courthouse Bargaining Unit.
. . .
Ms. Fox filed a grievance contesting her discharge, which listed Article
Rights Reserved, Section 7.01, any other article of the collective bargaining agreement that
pertained to the grievance, as well as any Article of the February, 1998 Personnel and
Administrative Policies which might pertain. Fox exhausted the grievance arbitration
and the case was brought on for arbitration before the undersigned.
Facts Surrounding Credibility of
The following list indicates each individual listed in the County's July
29th letter and the
status of their testimony, if any, herein:
1. Witnesses who failed to testify to or
denied the incidents they previously reported to either
the County or to Investigator Moore as described in the County's July 29th
a. Terry Duchow He essentially denied all
of Moore's report.
b. Barry Brokaw
He denied the slapping incident but confirmed that on two
occasions, Fox discussed with him his child support case in a tavern in a loud voice so that
others could hear. (Fox stated Brokaw asked her about his obligation to pay for insurance
and uninsured medical bills for his children and that she answered his question.)
2. Witnesses listed in the July
29th letter who did not testify herein:
a. Todd Konen
b. Kurt Kohler
c. Kurt Seefeld
d. Jessie Hephner (Fox
denied speaking to Hephner about child support cases.)
e. Missy Hanna
3. Witnesses who were never contacted by
the County and who did not testify in this case:
a. Norbert Schilling
b. Dale Hinz
c. Ellie Hinz
d. Ed Lorenz
Holly Pagel and Jody Franzen stated that Lisa Fox spoke in a very loud
manner at Cheers
Bar early in the morning of May 16 and stated words to the effect, that Dana Barnett didn't
because she didn't make Dana's dad pay child support. Barnett stated that Fox made the
recounted by Pagel and Franzen to Pagel on May 16th. Barnett also stated
Fox had made the same
comment to her many times in the past 3 to 4 years. Fox stated that she made the comment
friend Ellie Hinz, not in a loud voice after Dana Barnett pulled her earring out. Fox also
the Barnett girls are out to get her. 6/
6/ In April, 1994, Fox
sent Jody Franzen the following letter on CSA letterhead in her
capacity as Child Support Specialist:
. . .
Mr. Franzen was in my office explaining his problem
concerning his increase of his share
of babysitting expenses. He has explained to me that either he is paying for a babysitter
from his house when he has the children while working or paying one-half of the day care
(sic) have increased. Now you have informed him that you are joining Vic Tanning for
relating to your school course and he is to pay one-half of this, I think this is getting out of
Day Care is only for when you are attending school or working, going out or unrated (sic)
and work activities, that he is aware of, is not included.
This office does not
get involved with visitation problems, but because he is ordered to pay
one-half of babysitting for the children, that is related to child support. I have advised Mr.
Franzen to contact a private attorney and bring the case before the court and ask for full
placement of the children based on his present responsibilities and expenses of the children,
will eliminate additional babysitting and care expenses of the children.
I suggest you talk
with Mr. Franzen and review your schedule to assure him you are
having (sic) one-half of your physical placement obligation of the children, if not I suggest
make some changes in your schedule.
. . .
Witness Bob Cullen confirmed that on one or two
occasions in the year prior to her
discharge, he heard Fox say in a tavern that the Barnett girls were mad at her because she
dropped their dad's case. Fox did not specifically contradict Cullen. Also undenied by Fox
testimony of Wanda Nett, who stated that in the past three or four years, she heard Fox talk
child support cases in bars at least 10 times while Fox was intoxicated. Nett also confirmed
Kris Hauser had told her (Nett) that she did not want to give a statement in the Dana Barnett
because Lisa Fox could jeopardize her (Hauser's) child support case. Hauser stated herein
told her to give a statement to Officer Pendel and that she (Fox) would see what she could do
Hauser's child support case. 7/ Fox described her conversation with Hauser differently,
denying Hauser and Nett's testimony.
7/ Officer Seipel stated that he has gotten
reliable information from Kris Hauser concerning
various police department cases and that Hauser has never given Seipel inaccurate
Lisa Fox also failed to completely deny a statement made at the instant
hearing by Cynthia
Flaherty to the effect that many times in the past several years Flaherty saw Fox enter bars
and heard Fox talk to various people about their child support obligations. Flaherty also
in the past two years, she heard Fox call one person an unfit mother and another person a
dad. (Both of these conversations occurred in bars.) Fox denied the incident regarding the
mother comment and stated that she never spoke to the woman
involved in that case in a bar and explained that the woman hates her. Fox
also stated she was not
intoxicated when she allegedly made the "deadbeat dad" comment.
In regard to the statements of Keith Oakley, Fox merely stated herein
that she did not know
the man. On the other hand, Oakley testified that approximately five and one-half years ago,
both were in a bar drinking), Fox had asked him how he could afford to be in a bar,
referring to his
child support payment arrearage. In addition, Michael Boll, the owner of several taverns
in this case, indicated that he barred Fox from entering his bars ten years ago because of her
intoxication and because Fox had smashed a glass on the bar. Boll stated that Fox often
patrons in a loud manner, annoying the patrons. Fox denied confronting Boll's patrons
child support cases.
In regard to the incidents in which Fox was allegedly discourteous,
abusive, insulting or
inflammatory to employes of the County, the District Attorney, Ken Kratz stated that Fox
intoxicated at the Sheriff's party after the golf outing. Kratz essentially confirmed the
Assistant District Attorney Krause who stated that Fox told her and Kratz that she (Fox) did
respect Kratz and that she (Fox) would support Kratz' opponent in the next election. It
noted that Fox did not specifically deny either of these encounters. Finally, Sheriff Beilke
that Fox came to his party and became intoxicated; and that she engaged in lap dancing with
of the male jailers while at the party. Fox admitted that she engaged in lap dancing at that
In regard to the statements Fox made to Janet Johnson in May, 1998, Johnson stated that Fox
called her boyfriend a "jerk" or an "asshole" when Johnson met Fox at a local park. Fox
specifically deny the details of this incident, but attempted to explain it away in her testimony
POSITIONS OF THE
The County argued that the contract allows it to discharge employes for
although the contract does not define the term "proper cause". The County also noted that it
a policy on discipline and discharge which it asserted it followed in the Fox case. In this
the County noted that the record was clear that Fox knew of the State and Federal
against disclosure of child support matters and that any disclosure would also violate County
The County argued that Buchinger had regularly reviewed County policy regarding
and indeed had done so after each rumor regarding Fox's breach of confidentiality which
had received in the past. In addition, the County noted that both Fox's job description and
questionnaire underlying her position stated that Fox must live up to the County's
The County argued extensively regarding each part of Kirk Moore's
report, urging that it
was fully supported by other record testimony. In addition, regarding witnesses who did not
such as Hephner and Seefeld, the County argued that the unavailability of Hephner (in
should allow the arbitrator to fully consider the Moore report regarding the Hephner
Finally, regarding Seefeld's statements, the County urged that the Moore report was a
document on its own, and that Fox's pattern of conduct also supported the fact that the
made by Seefeld to Moore should be credited even without his testimony herein.
In regard to County policy, the County argued that Fox had violated
parts E, G, K and O
of the Policy by her actions proven in the Moore investigation and by the County's separate
investigation of internal matters. In this regard, the County noted that Fox's conduct toward
co-workers (such as Kratz, Krause, Johnson and others at the Beilke party) constituted
insulting, abusive or inflammatory conduct toward public employes. The County noted that
acts, (although off-duty) because they were directed at County employes, demonstrate that
a sufficient employment nexus for the County to have considered these acts in determining to
discharge Fox. Furthermore, the County noted that all of the employes who interacted with
played important roles in the child support area which were crucial for a good working
and successful prosecution of child support cases. The County urged that Fox had engaged
proven dishonesty and/or the taking of bribes in performing her duties (Section K of the
her conduct toward Kris Hauser.
The County noted that it had conducted a full and fair investigation and
had afforded Fox
due process. Yet Fox was unwilling to admit any wrongdoing and to take responsibility for
conduct. As she refused any remedial action offered by the County, the County believed it
appropriately discharged her. Therefore, the County urged that the grievance should be
dismissed in its entirety.
The Union argued that the County lacked just cause for discharging
Lisa Fox. In this
regard, the Union noted that the County failed to forewarn Fox of the possible or probable
consequences of her violating the County's rules regarding confidentiality. The Union noted
Fox was never told by any County manager what conduct would lead to discharge or other
discipline. In addition, the Union noted that Fox had a clean work record at the time of her
discharge and that she had received no prior warnings regarding any breaches of
and was therefore never given a chance to correct any perceived misconduct. As the
rules and policies clearly state that discipline should be corrective if possible, not punitive,
Union urged the Arbitrator to sustain the grievance.
The Union argued that the confidentiality rule was not reasonably
related to the orderly,
efficient and safe operation of the County's child support business or to the performance of
that the Employer could properly expect from Fox. In this regard, the Union noted that the
Employer's rules were unclear and that Fox's remark to Ellie Hinz at Cheers after Dana
attacked her was entirely understandable.
The Union urged that the investigation was neither fair nor timely, nor
objective. In this
regard, the Union noted that Corporation Counsel Melody Buchinger was judge, jury,
and instigator of the investigation against Fox; that the County did not bother to contact
witnesses, relying instead on friends of the Barnett sisters. Second, the Union asserted that
investigation was out of time that the accusations that were collected against Fox
were five to ten
years old. The Union also noted that the County has never been sued or had a client of
complain about Fox. In regard to the manner in which the County proceeded against Fox,
Union urged that the County essentially subjected Fox to double jeopardy by imposing
upon her and then later increasing the discipline for the same alleged misconduct. In
Union noted that Buchinger essentially admitted her bias when she testified regarding the
instructions that she gave Kirk Moore in launching his investigation against Fox, to uncover
everything that could be confirmed against Fox, making the investigation a witch hunt.
The Union then analyzed the testimony of each witness and observed as
follows. In regard
to Dana Barnett's testimony, the Union contended that that testimony demonstrated Barnett's
of concern for confidentiality and her interest in avenging herself against Fox or leveraging
that Fox would drop the charges against Barnett. The Union also noted that the testimony of
witnesses failed to confirm the content of the discharge letter. In this regard, the Union
that an analysis of Holly Pagel's testimony when compared to that of Dana Barnett,
that the Employer failed to prove that Fox yelled any prohibited comment in Cheers Bar on
or that Fox engaged in any wrongdoing whatsoever. In addition, the Union noted that Bob
failed to testify in support of Moore's report; and that Seefeld was not called as a witness,
the two jailers and Jessie Hephner, so that the allegations surrounding these individuals
disregarded by the Arbitrator. The testimony of Cindy Flaherty was imprecise and internally
contradictory; the testimony of Barry Brokaw, Terry Duchow and Keith Oakley varied
from the accounts placed in the termination letter, making those allegations against Fox
Kris Hauser's testimony failed to prove that Fox had threatened Hauser and demonstrated,
that Hauser was incredible; and allegations regarding Michael Boll were too stale (having
seven to ten years ago) and imprecise to fairly stand against Fox in this case.
In regard to Buchinger's internal investigation of incidents among
employes and Fox, the
Union noted that no complaints were made to Buchinger regarding Fox but that Buchinger
statements from County employes against Fox. In regard to the allegations surrounding the
Sheriff's party and statements made by District Attorney Krantz and Assistant District
Krause and Sheriff Beilke, the Union urged that the evidence failed to confirm that Fox was
discourteous or insulting to any of these County employes. In regard to the incident
Johnson, the same conclusion could be reached as no abusive, discourteous or insulting
reported by Johnson herein.
In regard to the penalty meted out by the County, the Union argued
that discharge was too
severe for the offense proven. The Union noted that Fox was an employe of 13 years with a
work record who had been nominated for Child Support Worker of the Year in 1995; that
offense that was proven herein was a comment which Fox admitted that she made to Ellie
May 16th, which the Union felt was entirely understandable under the
circumstances. Finally, the
Union observed that there was no evidence that the County had applied its rules
without discrimination, and that therefore the proper cause provision of the labor agreement
violated by the County's termination of Fox. The Union argued that Fox should be put back
work, given a chance to correct her conduct, and made whole.
The County disagreed that the Arbitrator must apply the seven tests for
just cause as the
Union urged in its initial brief. In the County's view, when an employe violates the
properly-adopted policies or state and federal laws, as Fox did here, the employer's
decision should be given substantial deference. According to the County, the real questions
case should be whether Fox did what she was accused of doing, and whether the discharge
warranted based on the facts of the case.
In any event, the County contended that it met the seven tests for just
cause and that the
Union has misconstrued testimony and exhibits and characterized and disregarded evidence
would support the County's view. In regard to the notice requirement, the County noted that
received copies of County work rules, policies and state and federal laws and regulations
required Fox to keep confidential information she learned in the CSA; that the County
provided training in confidentiality to Fox; and that Fox signed a position description
in which she promised to keep cases confidential. Despite this, Fox lied about her prior
of confidentiality when confronted by Buchinger with rumors thereon. The County noted
admitted to Officer Siepel that her job could be in jeopardy when she gave a statement
her complaint against Dana Barnett. When Fox
rejected the County's offered letter of reprimand, she also acknowledged that
she knew that more
serious consequences could flow from this rejection. The County also observed that it should
have been necessary for the County to tell Fox that the release of confidential information
cause her discharge that Fox knew, or should have known, that divulging
could lead to her discharge. Indeed, the allegations as well as the County's decision to
with pay demonstrated the seriousness of the allegations against Fox.
In regard to the reasonableness of the confidentiality rule and the
quality of the
investigation, the County noted that the Union failed to contest the reasonableness of the
confidentiality rule during the grievance process, and that the evidence failed to show that
in fact confused regarding a proper definition for confidentiality. In this regard, the County
the evidence provided by Fox regarding "most wanted" posters unpersuasive.
Regarding the quality of the investigation, the County observed that
there was no evidence
that Buchinger was out to get Fox. In this regard, the County pointed out that Buchinger
Fox for an award; that in her 1996 evaluation of Fox, Buchinger listed problems with Fox's
which Fox did not contest; that Buchinger accepted Fox's word regarding rumors of
breaches by Fox in prior years; that Buchinger offered Fox a letter of reprimand before
with a more in-depth investigation; that the County hired a private investigator to investigate
that Fox refused to give her story to the private investigator before the investigation was
Fox was given a copy of the investigator's report and an opportunity to respond to charges
investigation closed; that the County Board and the County Administrator concurred with
Buchinger's recommendation to fire Fox, proving that it was not Buchinger's sole decision;
prior to discharge, the County offered Fox alternatives to discharge which she refused and
Fox's grievance was fully processed by the County. Thus, the County urged that it was
the Union to attack Buchinger in these circumstances and that if Fox had no problem with
she should have taken the written reprimand and completed the alcohol assessment to show
County that they were incorrect on this point.
Finally, the County objected to the Union's argument that the County
had subjected Fox to
double jeopardy. In this regard, the County contended the fact that it had made an offer of a
reprimand prior to launching a broader investigation did not in fact constitute double
It was Fox who, of her own free will, decided that she would rather take her chances with
broader investigation, rather than accept the written reprimand.
In regard to the level of proof, the County urged that the record
supports its assertions that
it had proper cause to discharge Fox and that the investigation was fair and objective. The
noted that there was no evidence that any witnesses were out to get Fox and that any
between the witnesses' statements to investigator Moore and their testimony herein were
County noted that all witnesses were sequestered at the Union's request. The County
Barnett's motivation in complaining about Fox's conduct on May 16 was irrelevant.
In regard to Kris Hauser, the County found it incomprehensible that the
Union would attack
her, as Hauser had no axe to grind and Hauser's testimony was corroborated by Wanda Nett.
the County's view, this case is about a breach of confidentiality, not specifically about the
which occurred on May 16th. The County urged that it was not relevant that County
not complained on their own about Fox's actions; that Fox's actions toward her co-workers
been discourteous, abusive and insulting by any reasonable person's standard.
In regard to the level of the penalty and the equality of treatment
factors, the County noted
that there had been no prior cases similar to Fox's case; that the County's policy indicates
discipline can be accelerated in appropriate cases; that the evidence showed that Fox did in
all of the things she was accused of; and that members of the public were entitled to Fox's
protection as a Child Support Worker which Fox failed to give them due to her many
The Union argued that the distinction between "proper" cause and
"just" cause is one that
most arbitrators do not recognize and therefore, the undersigned should apply a just cause
herein. The Union observed that the witnesses who testified in this case had failed to swear
information they gave investigator Moore for his report, and that in their testimony herein,
failed to swear to the truth of the report, only stating herein that what they told Moore was
written down. In addition, regarding those who did not testify in this case, the Moore report
allegations should be entirely disregarded, in the Union's view.
The Union contended that Fox cannot be faulted for not working on
Kris Hauser's case prior
to her discharge; that Fox was suspended and never had the opportunity to work on Hauser's
at the time that Hauser told Fox she saw the fight between Fox and Barnett. The Union
there was no employment nexus proven between the Sheriff's party and Fox's activities.
Only if the
behavior harms the Employer's product or reputation, and the behavior renders the employe
to perform duties or appear at work and the behavior leads to a refusal, reluctance or
other employes to work with the person, should the Arbitrator find activities outside of work
the proper subject for discipline. In this regard,
the Union noted that no employes complained to the County about Fox's
activities and therefore the
maximum punishment which should have been given in this case was a written warning
have given Fox an opportunity to correct whatever perceived misconduct she had engaged in.
the Union urged the Arbitrator to find that the County had failed to prove it had proper cause
discharge Lisa Fox, and to order the County to reinstate Fox with full back pay.
This case concerns serious allegations of off-duty misconduct involving
alcohol by a long-term employe whose work record was completely clean at the time of her
discharge. The Union has
argued that an employment nexus test should be used in this case and that if a proper test is
the Arbitrator must reach the conclusion that the County was not privileged to discharge Fox.
Union urged that the following employment nexus test, used by some arbitrators in similar
should be applied herein:
(1) Does the employe's behavior harm the
Employer's product or reputation?
(2) Does the behavior render the employe
unable to perform his/her duties or to appear at
(3) Has the behavior led to the refusal,
reluctance, or inability of other employes to work with
the employe involved in the behavior?
In my view, the above test is not particularly relevant to this case.
Rather, the above test is
one which would generally be applicable to an employe who makes pejorative statements
the employer's product or reputation while off-duty. In contrast, this case concerns Fox's
comments divulging confidential information regarding the County's CSA cases. The release
such information, if it occurred, would not necessarily harm the CSA product or reputation;
such release may or may not offend members of the public or cause Fox's fellow employes
to work with her. Also, making such comments would not necessarily render Fox unable to
her duties or appear at work. The express and stringent requirement of both the State and
government concerning confidentiality in child support cases makes this case different from
private sector cases in which the above-described employment nexus test has been used.
the appropriate inquiry in regard to the issue of employment nexus is, in my view, whether
the off-duty misconduct was related to Fox's employment, and whether her misconduct had a
adverse impact on the County's CSA business. In my opinion, the breach of confidentiality
allegations made against Fox, if true, were certainly related to Fox's employment, and would
as certainly have a
foreseeable adverse impact upon the CSA's business and its reputation.
Therefore, I find that the
allegations made against Fox, if true, could constitute a basis for her discharge in appropriate
Close scrutiny and comparison of the testimony herein indicates that
Fox not only has a
drinking problem, but that, when she drinks too much, she often makes comments in public
confidential Child Support Agency cases to individuals not involved in those cases. Looking
at the incident of May 16, I find that Holly Pagel and Jody Franzen's version of what
during that evening appears to be more credible than Fox's version. In this regard, I note
Union failed to show that Holly Pagel had any reason to lie about the incident which gave
the fight between Fox and Barnett on the evening of May 16; that Dana Barnett's actions
comment was made about her father not paying child support, buttress Pagel and Franzen's
In addition, I note that neither Dale nor Ellie Hinz was asked to testify
in this case, and no
explanation therefor was given by the Union. It is also significant, in my view, that Fox
admitted making the statement regarding Barnett's father not paying child support. Also,
Nett, Bob Cullen, Cynthia Flaherty, Michael Boll and Keith Oakley all confirmed that over
five years, they have heard Fox talking about child support cases in taverns while she had
drinking. It simply stretches credulity that all of these members of the public, who were
to testify herein, would lie under oath about these matters, or that they would conspire
get" Fox, as she has contended. Compared to the testimony of these private individuals, is
Fox's testimony in which she either denies, attempts to explain away, or fails to address the
allegations made against her. Given the substantial evidence demonstrating Fox's breaches
confidentiality, I find that Fox breached confidentiality, essentially as stated by the witnesses
appeared before me.
I have not credited any of Dana Barnett's testimony as her testimony is
by Holly Pagel and her sister, Jody Franzen. (Indeed, Dana Barnett's fight with Fox on May
only makes sense if the comment that Fox made regarding child support in the Cheers Bar on
16th was made concerning Dana Barnett, and not Holly Pagel.) I also find
that the testimony of
Wanda Nett and Kris Hauser should be credited. In this regard, I note that there was no
to show that either Nett or Hauser had any axe to grind in this proceeding; that Officer
that Hauser had been a reliable informant for him in the past; and that Fox's attempt to
away her conversation with Hauser (regarding giving Officer Pendel a statement) was
by no one while Hauser's statements in this regard were corroborated by Wanda Nett and
Pendel. Fox's general credibility is also called into question by her specific denial of Officer
Pendel's testimony that on May 16th Fox attempted to "climb into" his
squad car through the
driver's side window. Pendel, as an officer of the law and an individual with no alterior
herein must be believed.
In regard to the allegations made concerning fellow employes, I note
that Assistant District
Attorney Krause essentially confirmed that Fox was at least disrespectful to the District
at Sheriff Beilke's party, and all witnesses who testified regarding that party indicated that
intoxicated that evening. I note in addition that Fox failed to deny the lap dancing incident at
Sheriff's party. In regard to the testimony of Janet Johnson, there is no reason to disbelieve
Johnson. Fox's explanation of that encounter was, in my view, unpersuasive. Thus, the
demonstrated that Fox had made several comments to fellow employes which were
insulting, abusive or inflammatory under Section 4 of the County's Employment Manual
In all of the circumstances of this case, the record demonstrates that the
clear and convincing evidence that Fox had engaged in breaches of confidentiality, as alleged
that she had violated Section 4.01(G) of the County's Employment Manual. Although I agree
the Union's assertions that some of the allegations made against Fox were quite old, I find
be telling patterns of conduct which Fox continued up to the date of her discharge. The
wrote to Franzen in April, 1994, also demonstrates that Fox enjoyed wielding power at the
was willing to go beyond her CSA authority to do so.
The Union has argued that the County failed to give Fox adequate
notice that breaches of
confidentiality would result in discharge. In the circumstances of this case, I disagree.
State and Federal authorities have made it clear that such breaches are punishable as
and are not meant to be tolerated in Child Support Programs. Fox had copies of the relevant
and Federal rules, regulations and statutes at her disposal, and she was regularly trained on
points. Fox's job description and questionnaire also clearly required her to maintain the
confidentiality of her cases. In these circumstances, it was unnecessary for the County to
the actions it would take were confidentiality breached. Indeed, Fox was clearly aware of
seriousness of her actions. This is demonstrated by Fox's comment to Officer Seipel on May
that she thought her job was in jeopardy if she pursued a complaint against Dana Barnett
there was a long-term dispute between her and Dana involving support and Dana's father. I
reject the Union's arguments that the County's confidentiality rule was not reasonably related
the orderly, efficient and safe operation of the County's CSA business. The County's rules
regarding confidentiality are essential to the orderly and efficient delivery of Child Support
in the County. Ineed, I do not see how the CSA could function without such rules, given
Federal requirements as well as the contractual requirements placed on the CSA by these
The fact that the County was never sued regarding any of Fox's CSA cases is irrelevant to
In addition, I disagree with the Union regarding the quality of the
investigation here as well
as its claims concerning double jeopardy. In regard to the former, no evidence was offered
support the Union's claims that Buchinger was somehow unfair to Fox during the
against Fox. It is clear on this record that Buchinger treated Fox fairly and that
she did not make the decisions to investigate Fox further or to discharge Fox
on her own. In
addition, the Union's claim that the County subjected Fox to double jeopardy by its initial
a written warning which, if rejected, would result in further investigation into breaches of
confidentiality is unpersuasive. This is not double jeopardy a concept in which the
essentially disciplined twice for the same offense. As Fox freely rejected the offered written
knowing a deeper investigation would result which could reveal new allegations of
which she could be held accountable, she cannot now claim that her choice subjected her to
The Union claimed that the County failed to show it has applied its
rules even-handedly and
without discrimination. In this regard, I note that there has never been another case such as
instant one in the County. Therefore, the Union cannot reasonably claim discrimination in
application. I also note that no evidence was proffered by the Union to show it has
objected to the County's confidentiality rules.
I turn now to the appropriate level of punishment for Fox's breaches of
her mistreatment of fellow employes. This Arbitrator has rarely disturbed an employer's
determination, in its discretion, of the level of discipline to be meted out. However, in this
where Fox's work record was clean and she had been employed for 13 years, I believe
is too harsh a penalty even for the serious misconduct she engaged in. In my view, Fox
another chance, the chance the County should have given her, (similar to the chance it
offered her, and which she rejected) to complete assessment and treatment for her problems
alcohol and to return to work. Given Fox's proven misconduct, however, I have not ordered
backpay and I have made the reinstatement conditional upon her completion of assessment
alcohol addiction. I have also made it clear in my Award that any further breach of
by Fox after her return to work can result in her immediate discharge. Furthermore, if Fox
to complete assessment and treatment for her problem with alcohol, the County need not
her, as her reinstatement and continued employment are also expressly conditioned upon her
completion of such assessment and all necessary treatment. This award represents a last
Based upon the relevant evidence and argument herein, I issue the
The County violated the collective bargaining agreement when it
terminated Lisa Fox. Fox
shall be reinstated, without backpay but with full seniority, to her former position or a
substantially similar thereto conditioned upon her completion of assessment for alcoholism.
reinstatement and continued employment after her return to work are also expressly
upon Fox's successful completion of any recommended treatment for her
problem with alcohol after her reinstatement. In addition, should Fox commit
any breach of
confidentiality after her return to work, the County may discharge her forthwith pursuant to
Award. If Fox refuses to agree to assessment and treatment, her discharge shall stand.
Dated at Oshkosh, Wisconsin this 20th day of August, 1999.
Sharon A. Gallagher, Arbitrator