BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DEPARTMENT OF SOCIAL SERVICE EMPLOYEES,
LOCAL 2228, WISCONSIN COUNCIL OF COUNTY
AND MUNICIPAL EMPLOYEES,
AMERICAN FEDERATION OF STATE, COUNTY AND
WINNEBAGO COUNTY, WISCONSIN
Mr. Richard C. Badger, Staff Representative,
Wisconsin Council 40,
AFSCME, AFL-CIO, P.O. Box 2825, Appleton, Wisconsin 54913,
appearing on behalf of Winnebago County Department of Social
Service Employees, Local 2228, Wisconsin of County and Municipal
Employees, American Federation of State, County and Municipal
Employees AFL-CIO, referred to below as the Union.
Mr. Tony J. Renning, Davis
& Kuelthau S.C., Attorneys at Law, 219
Washington Avenue, P.O. Box 1278, Oshkosh, Wisconsin 54903-1278,
appearing on behalf of Winnebago County, Wisconsin, referred to
below as the County or as the Employer.
The Union and the County are parties to a collective
bargaining agreement which was in effect at all times relevant to
this proceeding and which provides for the final and binding
arbitration of certain disputes. The parties jointly requested
that the Wisconsin Employment Relations Commission appoint an
Arbitrator to resolve a grievance filed on behalf of Virginia
Sherer. The Commission appointed Richard B. McLaughlin, a member
of its staff. Hearing on the matter was held on January 25, 2001,
in Oshkosh, Wisconsin. A transcript of the hearing was filed with
Commission on February 14, 2001. The parties filed briefs and
reply briefs by April 16, 2001.
The parties did not stipulate the issues for decision. I have
determined the record poses the following issues:
Did the County violate Articles 1, 8 and 9 of the Labor
Agreement when it suspended Virginia Sherer for three days for not
properly performing her duties as a Placement Coordinator and
providing false information to others involved in this case?
If so, what is the appropriate remedy?
Through its management, the employer retains the sole and
exclusive right to manage its business, including but not limited
to the right to . . . suspend . . . discharge or discipline for
just cause . . . In no event shall the exercise of the above
rights and responsibilities of the Employer violate the terms and
conditions of this Agreement.
. . .
DISCIPLINE AND DISCHARGE
An employee may be suspended, discharged or otherwise
disciplined for just cause. The sequence of disciplinary action
shall be written reprimands, suspension and discharge. This
sequence of discipline need not be followed in situations calling
for immediate suspension or discharge.
. . .
RULES, REGULATIONS AND POLICIES
The Employer may establish and enforce rules in connection
with the operation of the Social Services Department and the
maintenance of discipline in said operation by the Employer.
The Employer agrees to send a copy of
said rules to the Union
President for its information at least fifteen (15) days prior to
the effective date of such rules. Such policies shall be subject
to the grievance procedure.
The grievance form, filed on March 8, 2000 states the
relevant circumstances thus:
On the above date, employee was informed she would be
without pay for a period of three days, beginning March 1, 2000.
This suspension followed an investigation into the J.G. matter. No
written discipline was received until after employee's return to
work on March 6, 2000.
As the appropriate remedy, the form seeks that the County
"(r)estore pay lost as result of this suspension; remove any
reference to the is discipline from any/all records; make employee
Dennis D. Wendt, then Interim Director of the County's
Department of Human Services (DHS), issued the reprimand letter of
March 6, which states:
The Winnebago County Department of Human Services had an
investigation conducted by Godfrey & Kahn. You were given a
written summary of the investigation completed by the agency and a
written summary dated 2/23/00.
In a meeting with you on Monday, February
28, we presented the
investigation information regarding your activities to you for your
review. We then held a second meeting with you to hear your
response to the allegations set forth in the investigation.
After considering the information from the
the information that you expressed in a written memo and verbally
in our meeting of February 28, I determined that in the case of JG
you did not properly perform your duties as a placement coordinator
with the Winnebago County Department of Human Services on the Child
Welfare Resource Team. The information points out that you did not
locate, recommend, and facilitate a legal-risk placement for a
client as was needed for the case. Additionally, you provided
false information to other individuals involved with this case.
As a result of this misconduct, you are
without pay for a period of three workdays . . .
Please be advised that in the event that you
engage in similar
misconduct in the future, you may be subject to more severe
disciplinary action up to and including discharge.
The events underlying this letter demand are complex, focusing on
the response of DHS employees to the foster care arrangements of an
infant referred to as JG.
The Administrative Structure of the Child Welfare Division of
Leo Podoski is the Manager of the Child Welfare Division of
DHS. Broadly speaking, this division provides services to children
and juveniles, including home placement. The Child Protective
Services Team/South (CPSS) is under Podoski's supervision. The
CPSS team provides case management services to clients. The
services range from assessing care needs to coordinating the
provision of necessary services, including placements into foster
homes. The care assessment process is designed to afford whatever
service is necessary to keep a family unit intact. In cases in
which biological parents cannot care for children with such
services, it becomes the responsibility of the CPSS team to
initiate a legal proceeding to terminate the parental rights of a
parent or parents through the juvenile court process. This court
process is referred to below as the TPR process. The CPSS team
consists of a Team Supervisor, eight Social Workers and two Home
Consultants. Chris Howe is the CPSS Team Supervisor. Robin
Siebecker is a Social Worker on the CPSS team.
Also under Podoski's supervision is the Resource Team. The
Resource Team recruits, trains and licenses foster homes. It also
oversees the operation of foster homes, and can revoke the license
of homes not meeting relevant standards. The team will accept
referrals for placements from social workers, and is responsible
for linking a referred client to an appropriate home. The Resource
Team consists of one Supervisor, three Placement Coordinators, two
Shelter Care Workers, two Electronic Monitoring Social Workers, one
Corrections Worker and one Youth-at-risk Worker. Terri Wilkens is
the Supervisor of the Resource Team. From March of 1999 through
April of 2000, Rebecca Long served as an Electronic Monitoring
Social Worker. Sherer, at all times relevant here, served as a
Placement Coordinator for the Resource Team.
A foster home can be a receiving home or a legal risk
preadoptive home. It is possible to serve both functions, and a
single license covers both. From the client's point of view, a
receiving home is a temporary shelter provided pending the
provision of long-term care. A legal risk preadoptive home
reflects that the shelter afforded may become permanent because the
home provider has the interest, and potentially the opportunity, to
JG was born in November of 1996. Her biological mother was
arrested and jailed in Winnebago County in January of 1998. Her
biological father had been incarcerated sometime prior to this, and
had no established relationship with JG. In March of 1998, DHS
placed JG in the Reagan Foster Home. In April of 1998, her mother
was sentenced to ten years in prison. In May of 1998, JG was
adjudicated a Child in Need of Protective Services (CHIPS), and
legal custody over her was transferred to the County, through DHS.
In August of 1998, JG's biological mother transferred to a prison
in West Virginia. Siebecker prepared a Permanency Plan on JG's
behalf and submitted it to the County Circuit Court on March 31,
1999. The plan stated as its "Permanency Plan Goal", the
termination of JG's biological mother's and father's parental
rights. Her biological father was released from prison in May of
1999. JG continued to live at the Reagan Foster Home until June
DHS Policy 96-2
Policy 96-2 became effective on November 26, 1996, and reads
No employee of the Winnebago County Department of Social
Services will be allowed to be a licensed/certified foster
parent/adult family care provider, respite care provider, day care
provider or guardian for children or adults who are serviced by the
Winnebago County Department of Social Services.
DHS implemented Policy 96-2 to address a situation that arose in
1996 and involved Long, who was then employed as an Early
Intervention Social Worker. Long was then a licensed as a Foster
Parent through an agency other than DHS. She wanted to secure the
placement of two children who were clients of DHS and who were
eventually the subjects of a CHIPS and a TPR proceeding. These
proceedings put the County in the position of advocating a result
adverse to the children's biological parents that might permit
Long, as a County employee, to secure legal custody of the
children. The County determined this posed a conflict of interest,
posing a series of adverse ramifications. As a matter of social
work ethics, the personal interest of an employee servicing a child
that the employee sought to adopt might conflict with those of the
child or the child's biological parents. Beyond this, the conflict
of interest could pose civil and potentially criminal liability
issues for the County concerning actions adverse to the rights of
the biological parents. The conflict of interest could undermine
the successful advocacy of CHIPS or TPR proceedings, and opened DHS
to the public perception that placement and custody decisions were
slanted in favor of employees.
In response to this situation, the County contracted with
another county to provide the case management duties concerning the
children sought to be adopted by Long. This cost the County
several thousand dollars. To preclude a recurrence of this type of
situation, the County promulgated Policy 96-2.
The Development of the Controversy Concerning JG's
As noted above, JG remained at the Reagan Foster Home until
June 10, 1999. Due to concerns with the quality of care at the
home, the County closed it. This necessitated another placement
for JG. Sherer and Wilkens assessed the available options and
determined the best available placement for JG was at the Fenrich
Foster Home. Karen Fenrich operates the home, and has an
established relationship with DHS. She has adopted children placed
with her by the County. She is a friend of Long's, and offered her
home to JG as a receiving home. She noted to Sherer that she hoped
Long could adopt JG.
In July of 1999, Siebecker prepared a "Request for Termination
of Parental Rights" on behalf of JG for submission to a County
Circuit Court. Karen L. Seifert, an Assistant Corporation Counsel
for the County, advocated the request in court. Among other
points, the request noted that JG's biological father "has never
established a relationship with his daughter." The request also
noted that JG's biological mother "will be incarcerated until at
least April 29, 2002." The request also stated that JG "is
expected to be easily adoptable given her age and lack of special
needs", adding that "she has an ability to form a bond with an
Long developed a relationship between herself and JG, which,
by November of 1999, had become more akin to parent/child than to
social worker/client. Sometime in November of 1999, Seifert
learned of the relationship and informed the County's Corporation
Counsel, John Bodnar. The relationship became one of a series of
factors complicating the County's advocacy of a TPR concerning JG.
Due to a program designed to ease prison overcrowding, JG's
biological mother had become eligible for release well before April
of 2002, and her advocate had made discovery requests for the
production of County documentation supporting the TPR request.
Bodnar determined that the relationship between Long and JG
created the appearance of a conflict of interest. Beyond this,
County documentation supplied in response to the discovery request
failed to note that Long hoped to adopt JG and had been permitted
to develop a relationship with the child, possibly including
overnight stays. Bodnar viewed the relationship to violate Policy
96-2, to taint the TPR request and to risk significant liability
issues for the County. Ultimately, the County filed a motion to
dismiss the TPR. On January 18, 2000, the Circuit Court granted
the County's motion to dismiss. The County ultimately contracted
with another county to provide case management over JG.
Bodnar discussed the matter with Podoski, indicating that DHS
needed to investigate the matter fully, without regard to the
disposition of the TPR.
The DHS Investigation
Because of the close working relationship between DHS and the
Corporation Counsel's office, the County determined not to conduct
the investigation "in-house." Podoski contacted Godfrey & Kahn,
S.C., to conduct an investigation on the County's behalf. Podoski
oversaw the investigation, which included the direct interview of
ten individuals and the review of written statements from two State
of Wisconsin employees. Sherer and Wilkens were among the
individuals interviewed. Union representatives sat in on the
interview of each unit employee.` The interviews took place in
early February of 2000.
On February 28, 2000, Podoski summoned Sherer to a meeting and
provided her with an unsigned memo, dated "2-23-00" which states:
The following is information gathered and summarized, regarding
the investigation into the JG child protective service case as it
relates to Ginnie Sherer's involvement.
In late May/early June, 1999, Ginnie was
involved in finding a
foster home for JG. This home was to be a legal risk pre-adoptive
home. The home chosen for JG was not a legal risk pre-adoptive
home. Ginnie understood, prior to placement, that the foster parent
was not interested in adopting JG. Ginnie understood that Rebecca
Long, an agency employee, was interested in adopting JG. Further,
Ginnie understood that the foster home would take JG affording and
desiring that Rebecca have the opportunity to establish a
relationship with JG. This arrangement would position Rebecca to
be a potential adoptive parent for JG should the pending
Termination of Parental Rights (TPR) occur. A discussion occurred
with her supervisor, Terri Wilkens, informing her of this
information. At that time (prior to placement) it was decided by
Ginnie and Terri, to go ahead and place JG in this foster home. At
the time of placement, Ginnie informed the assigned social worker
that the foster parent in this home was in-fact interested in
adopting JG. Ginnie also informed the State worker, that our
agency works with in these cases, that the foster parent was
interested in adopting JG. Ginnie was aware that Rebbeca was
spending significant amounts of time with JG. Rebecca and JG
stopped by Ginnie's home and Ginnie saw JG at Rebecca's home. As
situations occurred Ginnie began to believe that Rebecca's
relationship with JG was significant and concerning. Ginnie
discussed these situations with her supervisor, with no decisions
made to do anything about it until mid-December. Ginnie chose to
be a party to not informing the assigned social worker of this
significant relationship between Rebecca and JG in part, because
she understood the potential impact this could have on the pending
TPR. Ginnie is aware of policy 96-2, which addresses agency staff
not caring for agency clients. Ginnie is
aware that significant client relationships
and events are to
be entered into the agency client record. Ginnie is aware of
social worker certification ethics and dual relationship issues.
It is reasonable to conclude from these facts
that Ginnie would
know that the agency would not support this situation. The
responsibility of the Resource Team is to provide services to
agency clients as they relate to the case plan as established by
the various Childrens Teams. An appropriate assessment of the
foster home being recommended in this situation would have
concluded that the placement did not meet the needs of this client
or the needs of the case plan. The decision to place JG in this
Coun(t)y foster home was in disregard of the case plan and the best
interests of JG.
Providing inaccurate information to the
assigned social worker
(foster parent was willing to adopt) manipulated that workers
ability to enter accurate information into the agency client
record. Further, the significance of this relationship would
require documentation in the agency client record, which could not
occur because the assigned social worker was not informed of the
relationship. There is no probable cause to believe any criminal
wrong doing occurred in this case.
Sherer responded in a memo dated February 29, which states:
This memo is in response to the information gathered and
summarized in a document provided to me by Leo Podoski on 02/28/00
regarding the investigation into the JG Case.
The memo dated 02/23/00 does not make
clear who summarized and
gathered the information contained in the document as it is
unsigned by any particular party. It is unclear to me if the
information contained in this document is Mr. Podoski's summary of
facts or those of the counsel that "independently" investigated
Statements made by me during the
investigation into the case of
JG are absent from the 02/23/00 document. I refute the alleged
facts that are stated in this unsigned document.
As noted above, the County suspended Sherer for three days.
Ultimately, the investigation produced a twelve page document
headed "Investigation Findings and Conclusion." This document is
referred to below as the Investigation. The "Conclusions" portion
of the Investigation states:
Based on the Findings set forth hereinabove, it is determined
1. JG was to be removed from the
Reagan Foster Home and
placed in a legal risk pre-adoptive home.
2. JG was placed in the Fenrich Foster
3. Placement of JG in the Fenrich
Foster Home was made
knowing that Karen Fenrich was not interested in adopting JG but
Becky Long was.
4. Prior to placement of JG in the
Fenrich Foster Home Becky
Long expressed to Ginnie Sherer and Terri Wilkens a desire to adopt
5. Terri Wilkens and Ginnie Sherer
placed JG in the Fenrich
Foster Home so that Becky Long could establish a relationship with
JG in the event the TPR was successful.
6. Terri Wilkens and Ginnie Sherer
placed JG in the Fenrich
Foster Home so that Becky Long could establish a relationship with
JG in the event the TPR was successful.
7. Terri Wilkens and Ginnie Sherer
encouraged Becky Long to
establish a relationship with JG.
8. Terri Wilkens did not discuss with
Becky Long the
parameters/boundaries with regard to JG.
9. Terri Wilkens, Ginnie Sherer and
Chris Howe were aware of
contact between Becky Long and JG. Their knowledge with regard to
the extent of the contact is uncertain.
10. Chris Howe was first aware of the
fact that JG was placed
in the Fenrich Foster Home because Becky Long was interested in
adopting in August/September of 1999 when she was so informed by
11. Neither Terri Wilkens nor Ginnie
Sherer had any
conversations with Robin Siebecker with regard to JG. Neither
wanted to discuss the matter with Robin so as not to create an
appearance that may jeopardize the TPR.
12. Chris Howe did not inform Robin
Siebecker or any other
individual in the Department in August/September of 1999 because
she was not aware of anything significant with regard to the
relationship between Becky Long and JG at that time.
13. In December of 1999 Terri
Wilkens, Ginnie Sherer and
Chris Howe became increasingly concerned with the relationship
between Becky Long and JG. Terri Wilkens finally approached Leo
Podoski with these concerns on December 17, 1999.
14. Robin Siebecker was neither aware
of the extent of the
relationship between Becky Long and JG nor the fact that Karen was
not interested in adopting Juliana.
15. The decision to place JG in the
Fenrich Foster Home was
in disregard of the plan with regard to JG as well as JG's best
The "Recommendations" section of the Investigation states:
Based on the Findings and Conclusions set forth hereinabove,
the following recommendations are made with regard to disciplinary
Terri Wilkens, by way of her
position, should not have allowed JG
to be placed in the Fenrich Foster Home in disregard of the
plan and JG's best interests. Furthermore, Terri should not
have allowed the placement to occur to facilitate the
development of a relationship between Becky Long and JG. A
five-day suspension without pay is warranted.
Ginnie Sherer should not have
allowed JG to be placed in the
Fenrich Foster Home in disregard of the plan and JG's best
interests. Furthermore, Ginnie should not have allowed the
placement to occur to facilitate the development of a
relationship between Becky Long and JG. A three-day
suspension without pay is warranted.
3. Chris Howe should have come forward with her
August/September of 1999 when she first was made aware of the
situation. Furthermore, Chris should have informed Robin
Siebecker of the relationship between Becky Long and JG, to
the extent Chris was made aware. A written reprimand is
The County implemented these recommendations. Long resigned from
The chronology set forth above is essentially undisputed. The
balance of the background is best set forth as an overview of
Podoski has served as a County employee for twenty-one years,
including two years in his present position. He noted the County
adopted Policy 96-2 to avoid conflicts of interest regarding
placement decisions involving clients. The County posted the
policy bulletin boards, and included it in the Policy Manual.
JG was a County client under the CHIPS process. The
permanency plan developed for her in March of 1999 laid the
groundwork for her ongoing care through DHS. That plan was
reviewed every six months. The TPR process is the outgrowth of a
permanency plan where that plan cannot succeed in securing adequate
in-home care for a child through the natural family. In JG's case,
the TPR process began when it appeared that no level of County
service could unite JG's biological mother or father with JG in a
safe environment. The TPR process for JG was coordinated through
Siebecker, Howe and the Corporation Counsel's office.
Podoski acknowledged that the June 10, 1999 placement was
caused by the closure of the Reagan Foster Home. He did not know
the factors that prompted the closure, but he felt that the
permanency plan called for placing JG in a legal risk preadoptive
home. The Fenrich Foster Home, in his view, was no more than a
receiving home for JG. Even assuming that such a legal risk
preadoptive home placement was not possible on June 10 did not, in
Podoski's view, obscure the need to secure such a placement as soon
as possible. He concluded that Sherer had not taken such steps.
He based this conclusion in part on statements supplied during
the investigation by Patricia Lancour and Anne Fuenger, who are
employees of the State of Wisconsin Department of Health and Family
Services. They assist in coordinating placements, including legal
risk preadoptive homes. Lancour's statement indicates that she
spoke with Sherer concerning JG's placement by phone on June 14,
1999. Lancour's notes of that conversation read thus:
p/c with Ginny Sherer, Winnebago County foster home
coordinator, informed her that the Department may have a legal risk
preadoptive home for JG; an Outagamie County family who is
currently licensed, has another minority child & is interested in
adoption. Ginny informed this worker that the current family had
expressed an interest in adopting her and given the move she
recently endured (the abrupt move from the Reagans) that perhaps
leaving her in that home would be best.
Fuenger's statement indicated to Podoski that Karen Fenrich had no
interest in adopting JG, but that Long did. Fuenger's statement on
this point reads thus:
Becky called to say that there was a little girl at Karen
Fenrich's home that Becky thought would be a good fit for her
family . . . Someone from Winnebago County asked Pat Lancour to
find an at-risk adoptive home for this little girl . . . Karen
Fenrich is the current foster parent for this little girl and is
not interested in adopting this child because the little girl's
parent or parents have a reputation for violence and they are
dangerous. Karen does not want to expose her family to this.
These statements, considered with the interviews of County
employees, convinced Podoski that Wilkens and Sherer placed JG in
the Fenrick Foster Home as a receiving home. In his view, the
permanency plan should have dictated efforts to make a single
Further complicating this was Sherer's and Wilkens' desire to
assist Long in her efforts to adopt JG. Apart from the issue that
Fenrich, as the home provider, had no interest in adopting JG was
the conflict of interest involved in making a County employee the
adoptive possibility. Encouraging Long to build a relationship
with JG exacerbated the conflict of interest issue, and put Long
and those assisting her in violation of the spirit, if not the
letter of Policy 96-2. Podoski stated that Sherer acknowledged
during the investigation that she, Wilkens and Long collaborated on
the placement of JG in the Fenrich Foster Home. Fenrich, he added,
indicated that Sherer and Wilkens encouraged her to take placement
of JG to assist Long.
Sherer's desire to assist Long also led Sherer to mislead
Lancour concerning Fenrich's desire to adopt. This pattern of
behavior warranted, in Podoski's view, a three-day suspension. Of
greatest concern to Podoski was that Sherer had assisted in a
placement that put Long's interest in adopting JG ahead of JG's
best interests as reflected in the permanency plan. The placement
alternatives available on June 10, 1999, had no impact upon this
consideration. Wilkens received a greater suspension because of
her status as supervisor. Long would have been disciplined had she
remained a County employee.
Thomas was, at the times relevant to the grievance, an
Assistant Corporation Counsel for the County. He was involved in
advocating the CHIPS matter that prompted Policy 96-2. Long's
status as a County employee actively seeking to secure the
placement of two children subject to the CHIPS proceeding posed, in
his view, ethical issues and potential issues of tort liability for
the County. At a minimum, even the appearance of conflict of
interest type issues risked tainting CHIPS or TPR matters. Sherer
served as a caseworker on the matter, prior to the County's
contracting of case management of the matter to another county.
Sherer and Thomas
actively discussed Thomas' concerns. He stated that the
implementation of Policy 96-2 caused a certain amount of
controversy within DHS, since "there was some disagreement on
perhaps a philosophical basis for the policy and the need for the
policy" (Transcript, Tr., at 85).
Thomas characterized Sherer's performance as a social worker
as "(e)xcellent", and he placed her "among the top social workers
we had in the County during my tenure" (Tr. at 89).
Wilkens has served as Resource Team Supervisor for roughly two
years. She noted that she and Sherer collaborated in the decision
to place JG at the Fenrich Foster Home. They did so knowing that
Long, unlike Fenrich, was interested in adopting JG. She noted
that Sherer did voice concerns regarding Long's relationship to JG
when Sherer learned Long was thinking about changing JG's name.
Wilkens estimated this occurred in late September or October, 1999.
Wilkens stated that the original placement at the Fenrich
Foster Home reflected the absence of alternatives. She denied
that, even in hindsight, the June 10, 1999, placement was flawed.
Rather, it was a practical necessity at the time, reflecting the
emergency caused by the closure of the Reagan Foster Home. Viewed
with hindsight, Wilkens thought that Long's involvement with JG
tainted the placement.
The closure of the Reagan Foster Home reflected DHS concerns
with the well-being of foster children, including JG. Sherer, at
the time of the placement, indicated to Wilkens that Fenrich did
not wish to adopt JG, but would take placement of her for Long.
Roughly two weeks prior to JG's placement, Fenrich informed Wilkens
and Sherer that Fenrich hoped to adopt a child of JG's age.
Wilkens was aware, at the time of the placement, that Fenrich had
adopted children originally placed with her by the County on a
Wilkens acknowledged that a conspiracy of County employees to
manipulate the placement process to advance the adoption efforts of
a County employee would be improper. She denied that any such
conspiracy occurred in the JG placement. She was unaware at what
point Lancour offered to move JG, but felt that in July of 1999, JG
was placed in the best environment possible.
Long's relationship with JG had, by late October or early
November, become improper. Wilkens stated "I know Ginnie felt
something needed to be done, and I also felt at that point that
things got out of hand" (Tr. at 102). She then informed Long that
she would discuss the matter with Podoski. This resulted in the
termination of any relationship between JG and Long.
Bodnar has served the County for roughly twenty years,
including eleven as its Corporation Counsel. Bodnar recommended
the voluntary dismissal of the TPR in JG's case when Seifert
informed him that the file did not note JG's placement in a home
through which Long had cultivated a parent-like relationship with
JG, including overnight stays. The impropriety of the relationship
and its omission in County record posed, in his view, serious
ethical issues possibly branching into civil and criminal
liability. He recommended the investigation of the matter, but did
not participate in it due to the close working relationship between
his office and DHS personnel. He did not review the findings of
the investigation with DHS personnel.
Bodnar has enjoyed a good working relationship with Sherer,
whom he views as in "the top five percent of the workers I work
with" (Tr. at 122-123). At the time he recommended a DHS
investigation, he had no idea Sherer had any involvement in the JG
Sherer has served the County for twenty-one years, serving on
the Resource Team since March of 1999. She played no role in the
decision to close the Reagan Foster Home, but did work with a team
to place the children affected by its closure. Prior to the closure
of the Reagan Foster Home, she and Wilkens had discussed Fenrich's
desire to adopt a two to three year old female child. Shortly
after the closure, Sherer phoned Fenrich about accepting placement
for JG. Fenrich responded that "what she would like to see happen
would be for Becky Long to adopt that child" (Tr. at 132). Sherer
was concerned about this statement, and discussed it with Wilkens.
She never informed Wilkens that Fenrich would accept placement of
JG as a surrogate for Long's interest in adoption.
Sherer has worked with Fenrich before, and has placed children
with Fenrich on a receiving basis. In three such cases, Fenrich
professed no long-term interest in the children, but in each case
adopted. Sherer believed this might happen again with JG. She
analogized the bond that results in adoption to a courtship that
results in marriage. Each requires time to develop a relationship
that neither party can necessarily commit to prior to the
development of a loving bond. Thus, Fenrich's initial denial of a
long-term interest in JG did not preclude adoption. At no point in
the placement process did she see herself in violation of Policy
96-2. At no point in the placement process did she encourage Long
to develop a long-term relationship with JG.
Sherer felt that there were no good placement options
regarding JG in June of 1999, and that the difficulty with the
placement traced to Wilkens' permitting Long too much latitude to
develop a parent-like relationship with JG. Sherer became
concerned about that relationship in July of 1999, when she heard
JG refer to Long as "mommy." She voiced her concern to Wilkens
shortly after this. The following October, Sherer heard JG refer
to herself as "Kendal."
Sherer was aware that Long wanted to adopt JG, and intended to
change JG's name. Sherer approached Long and discussed the matter.
In late September or early October, Fenrich had a child
hospitalized, and spent time at the hospital with the child. Other
foster parents assisted with the children in her home, but Sherer
was unsure who was caring for JG. She approached Wilkens and tried
to warn her to keep some distance between JG and Long, particularly
regarding overnight stays. None of the conversations between
Sherer and Wilkens between July and November of produced further
action. By December of 1999, Sherer became more insistent on the
issue and repeatedly informed Wilkens that Sherer would approach
Podoski if Wilkens would not.
Sherer specifically denied the existence of any "conspiracy"
regarding JG's placement. That placement, in any event, was for
foster care. Legal risk placements are made by the State. She
could not recall speaking with Lancour about arrangements for JG
other than the Fenrich Foster Home. She did not approach Podoski
directly until December because perhaps three supervisors were
aware of the JG/Long relationship and none chose to act on it.
Sherer had asked Long, perhaps in August of 1999, about Siebecker's
understanding of her relationship with JG. Long responded that
Howe agreed with Long that Siebecker need not know of it.
Sherer also denied that Long ever participated in the
placement decision. Long walked in on a conversation between
Wilkens and Sherer over placement in the Fenrich Foster Home, but
Long played no role in the decision. Sherer acknowledged she was
aware, prior to the placement, that Long wanted to adopt JG.
Wilkens informed Long that she should form a relationship with JG,
but Sherer neither made nor approved of that statement.
Sherer noted that she was given the 2-23-00 memo on the day
before she received her three-day suspension. Podoski and Wendt
summoned her to a meeting. She appeared at the meeting accompanied
by three Union representatives and an attorney. Podoski and Wendt
gave her the memo, and informed her that she would be given twenty
minutes to read it and respond to it. After reviewing the memo,
she was convinced she was about to be fired. On the advice of her
attorney, she asked for, and received, twenty-four hours to make a
written response. That response is set forth above.
In retrospect, Sherer believed she should have approached
Bodnar directly, well before December of 1999. She characterized
the situation she confronted thus:
You know, I went to I went to Teri Wilkens on more
occasion, Chris Howe certainly knew of the situation, she
supervised Robin Siebecker. If she wanted some different
placement, she could have asked . . . She didn't tell Robin
Siebecker anything, but yet myself . . . I'm supposed to trod into
Leo Podoski's office, and, you know, create this big furor for our
entire division. It was bad enough with your investigation that
for months I didn't have any coworkers
speaking to me for the action that I took,
and that was with
the support of my supervisor . . . No, I would not have gone to Mr.
Podoski in this situation, because it was horrible for me, being a
whistle-blower and being treated the way that I was by my
coworkers, as well as administration (Tr. at 152-153).
Stark is the Adult Foster Family Care Coordinator, and
President of the Union. She and one other Union representative
witnessed each interview with unit members. She felt the procedure
of the investigation was flawed, in that each unit employee was
told to be at their office the day before the interview and that
Podoski would accompany them to a meeting. The County gave no
notice of the purpose of the meeting or what subjects might be
discussed. The unit members were given no time to prepare or to
review case files. She also questioned the propriety of Podoski
actively participating in the interviewing process. The
investigation afforded, in her view, no cause to discipline Sherer.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The County's Initial Brief
After a review of the record, the County asserts that the
generally accepted elements of just cause are stated in the seven
tests posited by Arbitrator Carroll Daugherty in Enterprise Wire
Co., 46 LA 359 (1966). Evaluation of the evidence in light of
those standards "conclusively demonstrates that the County acted
reasonably and with 'just cause' in suspending the Grievant for
three (3) days." As preface to its examination of the seven
standards, the County contends that its investigation proved that
Sherer engaged in the conduct for which she was suspended. More
specifically, the County argues that Sherer failed to properly
place JG, and "provided false information to others involved in
The first of the standards governing this conduct concerns
notice. The County asserts that it implemented Policy 96-2 under
the authority set in Article 9 of the labor agreement. The policy
"was posted on designated bulletin boards . . . and included in the
Policy and Procedure Manuals available to employees." Beyond this,
Sherer acknowledged she was aware of the policy. In any event,
Sherer was actively involved in the situation that prompted Policy
96-2. That the conduct might have disciplinary significance is
established by Article 8. The need for, and significance of,
providing accurate information is a common sense matter, as well as
a function of Sherer's training.
Policy 96-2 and "the need to provide accurate information" are
"reasonably related to the orderly, efficient and safe operation of
the County's business and to the conduct the County may properly
expect of its employees." The County's promulgation and
enforcement of Policy 96-2 avoids conflicts of interest and shields
the County from potentially significant civil liability. The
policy is reasonably related to the County's operation of its
social services department, and governs performance that should be
expected of Sherer.
Since the County, "before disciplining the Grievant, conducted
a thorough investigation", it has complied with the next element of
the Daugherty standards. The County contracted with an outside law
firm to assist in its internal investigation. That investigation
resulted in the interviewing of ten individuals, and the
compilation of a significant amount of data. The investigation
established Sherer's culpability as well as the absence of
The investigation was, as required by the Daugherty analysis,
"fair and objective." The independent firm "had no bias or
affiliation with" DHS or Sherer.
As a result of the investigation, the County determined that
substantial evidence indicated Sherer had placed JG in the Fenrich
Foster Home even though Fenrich "was adamant that she was not
interested in adopting J.G." Prior to imposing discipline, the
County afforded Sherer the opportunity to "review the evidence
against her and to raise any questions she had as to the evidence."
She raised no questions. Thus, the County acted on substantial and
uncontroverted evidence. In any event, a review of the evidence
establishes that the County had a substantial evidentiary basis to
ground its conclusion that Sherer had engaged in a significant
level of misconduct.
Under the labor agreement, the discipline could appropriately
range from a written reprimand to a discharge. Thus, "the
discipline imposed may be at any level so long as it is consistent
with the seriousness of the infraction." Even though Sherer may
not have been guilty of deliberate misconduct, the evidence
manifests "an exercise of extremely poor judgment on the Grievant's
part." The underlying conduct touches on sensitive policy issues
concerning the care of children, and thus warrants a suspension.
Put in terms of the Daugherty analysis, the evidence establishes
that the County applied its rules without discrimination. Each of
the individuals involved in the placement of JG received
discipline, except Long, who "would have been disciplined had she
not resigned prior to the completion of the investigation." Beyond
this, the suspension "was reasonably related to the seriousness .
. . of the established misconduct." The County concludes that it
has proven each of the seven elements of the just cause standard.
Arbitral precedent and basic employment policy dictate that
the decision to discipline must be the employer's, not an
arbitrator's. The suspension should not be modified unless it can
be proven "discriminatory, unfair or arbitrary and capricious." No
persuasive evidence supports such a conclusion, and thus "the
grievance is without merit and, therefore, must be denied."
The Union's Initial Brief
The Union states the issues for decision thus:
Did the County have just cause to suspend
the Grievant for
If not, what is the remedy?
After a review of the record, the Union argues that "the
was inappropriate on many grounds."
More specifically, the Union contends that Sherer's placement
of JG in the Fenrich foster home "was appropriate under the
circumstances." Podoski's concern that JG receive a "legal risk
placement" is an after-the-fact conclusion, reflecting no more than
that JG's placement "was the right decision at the time." Sherer,
after consulting with her supervisor, concluded that, since both of
JG's parents had been incarcerated, an emergency existed and that
the Fenrich home was the best available placement. Fenrich had, in
addition, adopted prior placements made by Sherer, even after first
disavowing any interest in adoption. Under any reasonable view of
the circumstances, Sherer acted appropriately in placing JG.
Beyond this, the Union contends that Sherer's "veracity and
professionalism are above reproach." This is established by County
as well as by Union witnesses. Long service, unblemished by
discipline, is often taken by arbitrators as a basis to reduce
penalties. Even though "no discipline is warranted in this
matter," the Union concludes that if any discipline is imposed, it
should be at a level below a suspension.
Nor is the weakness of the discipline founded only on Sherer's
employment history, since "the County did not conduct a fair
investigation in this matter." The investigation was clouded by
Podoski's "desire to find a nonexistent conspiracy." A review of
the testimony establishes there was no general effort to "help
Becky Long establish an inappropriate relationship with J.G."
Perhaps "the most disturbing" aspect of this matter "is that
the County suspended the one person who fought to bring the Becky
Long situation to light." Sherer attempted to get Wilkens to
inform Podoski that Long was developing a relationship with JG, but
failed. The "end result" earned by Sherer is that the County "shot
the messenger." The underlying evidence is sufficiently troubling
that the Union asserts that "the County's actions in this matter
may have crossed into the prohibited realm of retaliation against
Viewing the record as a whole, the Union concludes that
Sherer's "three-day suspension is clearly unjust", and requests
"that this grievance be sustained and that the County be ordered to
make Ginnie Sherer whole."
The County's Reply Brief
The County notes that "a short-term placement of J.G. in the
Fenrich Foster Home (1 or 2 days at most) may have been appropriate
because of a lack of other alternatives", but concludes that
"ultimately the Grievant failed to locate, recommend and facilitate
a long-term legal-risk placement . . . as was needed." More
specifically, the County notes that Sherer ignored Fenrich's denial
of any interest in adopting JG. That Lancour advised Sherer in
mid-June of 1999 that the State might have a "legal risk adoptive
home" for JG underscores how little effort was required of Sherer
to address JG's long-term interests.
More significantly, the Union failed to rebut Lancour's
detailed notes regarding a conversation with Sherer, during which
she actively attempted to keep JG at Fenrich's home. General
testimony concerning her past work record cannot be considered to
persuasively address this point. Beyond this, the quality of
Sherer's past work record only underscores the weakness of her
judgement in this instance. That Sherer failed to voice her
concerns regarding JG's placement until December of 1999 further
underscores the discrepancy between her past work performance and
her conduct regarding JG. Union assertions concerning Sherer's
unwillingness to bypass Wilkens to speak with Podoski cannot
explain past instances when Sherer paid no attention to the chain
Beyond this, "the record conclusively demonstrates that the
Grievant collaborated with Terri Wilkens and Becky Long to
manipulate the adoption process in favor of Becky Long." A review
of the evidence establishes, according to the County, that "the
record in this case provides no basis to mitigate the discipline
imposed by the County against the Grievant."
Nor can the Union's attack on the County's investigation be
credited. Podoski did no more in the investigation than to serve
"as advisor because of the technical nature of the issues
involved." The investigation was unbiased and produced substantial
evidence that Sherer violated Policy 96-2.
Nor can Sherer be characterized as a whistleblower. Sherer's
failure to voice any concerns until December of 1999 undercut such
a characterization. A review of the evidence indicates that Sherer
is attempting no more than "to wash her hands of her misconduct
because her guilty conscience finally got the best of her."
Arbitral precedent confirms that conduct resulting in a conflict of
interest "is serious and warrants strong discipline." The evidence
establishes that Sherer failed to do her job, thus disregarding
JG's long-term interests, creating a conflict of interest
undermining the reputation of the department, and potentially
creating "significant criminal and civil liability for the County."
Because the evidence establishes that Sherer committed the
underlying misconduct and that the County's imposition of a three-day suspension reasonably
reflected its disciplinary interest in
that conduct, the suspension must stand, without regard to the
Arbitrator's "personal judgment."
The Union's Reply Brief
The Union notes that "the parties have never agreed to apply
Daugherty's tests in past disciplinary cases," and "that
arbitrators do not uniformly adhere to these tests." The Union
concludes from this that it "therefore defers to the Arbitrator's
judgment as to whether Daugherty's tests are applied to determine
whether or not discipline was justly served in this matter." The
Union structures its reply brief around those seven standards.
Contrary to Policy 96-2, Article 8 of the labor agreement sets
forth a system of progressive discipline ranging from "written
reprimands" to "suspensions" and culminating in "discharge". Thus,
even if the policy applies, the County should have imposed a
written reprimand. Under no reasonable view of the evidence can
"the grievant's actions be seen as justifying extreme disciplinary
measures." Beyond this, "common sense" has little to due with
notice to Sherer of the consequence of her actions, which turn on
"the gray areas of professional judgment." In any event, there is
no evidence of any conspiracy to place JG with Long.
Beyond this, the Union contends that Policy 96-2 "does not
apply in this matter". The policy proscribes allowing any
department employee to become a legally responsible guardian or
care provider for a child serviced by the County. Sherer never
acted to "allow" Long to assume such status, and in fact acted to
oppose the development of a relationship implying such status.
Thus, County action against her must rest on an "unwritten rule"
reflecting no more than Podoski's disappointment that Sherer did
not bypass her supervisor "and proceed directly to him when she
developed suspicions about Becky Long."
Nor can the County's investigation be considered fair or
objective. Rather, "the County performed an investigation of
sorts" headed by Podoski, who "was convinced that some sort of
conspiracy was taking place." To defer to the summary conclusions
of the law firm's investigation "seems to be granting the employer
too much discretion." If anything, the investigation manifests the
County's excessive zeal to avoid a repeat of a prior incident.
Nor did the investigation produce substantial evidence of
misconduct. Lancour's notes show only that the State "may" have
found a legal risk adoptive home, and that Sherer opposed moving JG
unnecessarily. Even if finding such a placement was Sherer's duty,
the evidence establishes that that possibility of adoption is the
determining factor. Sherer had concluded that such a possibility
did exist in light of Fenrich's past adoptions. The County's
desire to impose "hard and fast rules and easy decisions" should
not obscure "reality with regard to issues of child
welfare." A social worker "must be allowed to make difficult
judgment calls on the spot without fear of reprisal once all of the
facts are known." That Sherer took appropriate action when she
became aware of Long's involvement with JG is established in the
Nor can the County contend it has applied its rules even-handedly. Sherer's
suspension is graphic demonstration of
"shooting the messenger." This hardly warrants status as past
practice. One of Sherer's supervisors received a written
reprimand, and one was suspended. Ignoring the inconsistency, it
is apparent that if a conspiracy existed, the County is sending the
message that the appropriate employee response "is to keep your
mouth shut." Beyond this, the suspension imposed on Sherer ignores
her stellar work record.
The Union concludes that the application of the Daugherty
standards demands that the discipline be overturned.
I have adopted the County's statement of the issues. As a
contractual matter, Articles 1 and 8 govern the grievance. The
reference to Article 9 is to underscore the role of Policy 96-2 in
Sherer's discipline. The Union does not, however, challenge the
reasonableness of Policy 96-2 as a policy matter. Rather, the
Union challenges its application to Sherer. Thus, the issue on the
merits turns on whether the County had just cause to discipline
Sherer for improperly performing her job duties and for providing
false information to others. Article 9 plays no direct role in the
resolution of that issue.
As a prefatory issue, the parties question the standards
governing just cause. The County cites the "Daugherty" standards,
see Enterprise Wire Co., 46 LA 359 (Daugherty, 1966). The Union
does not concede that they govern this labor agreement, but uses
them to structure its arguments. The discussion that follows uses
the seven standards as its structure. This reflects no more than
a means to address the parties' positions.
The binding force of the just cause provision, or any
standards defining it, flows from the parties' accord, as stated in
the labor agreement. However persuasive as a general or an
academic matter, the Daugherty standards should not, in my view, be
treated to stand alone as a binding definition of "just cause." To
do so elevates arbitral inference to contract creation. Contract
creation should be left to the bargaining parties. More
specifically, the fit of the elaborate procedural requirements of
enterprise wire on smaller employing entities should not be taken
as a given. Beyond this, the requirements should not be imposed on
any contracting party to the exclusion of past practice, bargaining
history or other factors within the bargaining parties' control.
Those factors, in my view, establish in fact what constitutes the
binding features of a bargaining relationship.
The standards themselves are stated, but cannot be applied, as
if they are purely procedural. Strictly read, the seven
requirements focus on the employer's investigation to the exclusion
of whether the grievant committed a disciplinable offense.
Enterprise Wire itself falls short of this mark, since it is
apparent the testimony at hearing turned on whether the alleged
offenses occurred as alleged. This tension between a purely
procedural analysis of the employer's investigation and a
substantive analysis of the allegations is reflected in the seven
standards. The fifth standard, for example, turns on whether the
investigation provided "substantial evidence" of guilt. Is an
investigation infirm that does not uncover all the evidence
produced at the arbitration hearing? Is an employer obligated to
investigate the matter as fully as it is prepared to try it? How
many employers or unions can muster two complete investigations,
one for the "investigation" and a second for the arbitrator? The
delays inherent in investigation forestall action. To my
experience, an employer investigates an offense to the point that
it is convinced prompt action is necessary. Assuming this comports
with the "substantial" requirement of standard 5, should an
arbitrator ignore evidence discovered or presented after the
employer's investigation? It is at least arguable that an employer
could acquire "substantial" evidence of an offense a grievant did
not commit. Any grievance posing a credibility dispute can fall in
this area. In my view, the parties expect, and should expect an
arbitration hearing to consider whether the alleged misconduct
As a matter of practice, arbitration hearings tend to focus on
whether the grievant committed a disciplinable offense and whether
the sanction imposed reasonably reflects the employer's interest in
that offense. Compare, for example, Blue Cross/Blue Shield, 104 LA
635 (House, 1995). The Daugherty standards should not, in my view,
be read to conflict with this practical approach.
In any event, the parties have at least acknowledged the
utility of the seven Daugherty standards. The interpretive dispute
focuses on the fifth and seventh standards.
There is no dispute that Sherer was aware that the conduct she
is accused of has disciplinary significance. Podoski's testimony
honed the County's disciplinary interest on the propriety of
Sherer's placement of JG, and on whether she provided false
information to Lancour and others. Sherer was involved in the
processing of the matter that prompted Policy 96-2, and testified
that she supported it. There is, in any event, no dispute that if
she acted against JG's long term interests, as reflected in the
permanency plan, she would be violating the trust placed in her
position. Beyond this, no competent social worker could credibly
claim that an employer has no disciplinary interest in the accuracy
of the information provided concerning the foster placement of a
juvenile (compare to Note 3 to question 1 of Enterprise Wire, 46 LA
at 363). Placement of a juvenile whose parents may not be able to
legally claim custody poses an inevitably complex, if not
impossible, issue to resolve. Such an issue demands the candor of
The Union does not question whether Sherer was warned of the
disciplinary consequences of her actions. Rather, the Union
questions whether she actually committed the actions she was
punished for. Notice affords no basis to question the discipline.
This standard tracks the first. Podoski's expectation that JG
be placed in accordance with her permanency plan rather than in the
interest of a potentially adoptive parent, who is a County
employee, is fundamental to the orderly operation of DHS and the
maintenance of public trust in it. Here, as with the first
standard, the issue is not whether Podoski could reasonably expect
Sherer to act in JG's long-term interests in placing JG, or in
responding to others concerning that placement. Rather, the issue
is whether she committed the acts she was disciplined for.
As Stark noted, questions can be raised regarding the County's
investigation. Among the professional employees involved in this
matter, questions are inevitable. It cannot, however, be doubted
that the County "made an effort to discover whether" Sherer "did in
fact violate or disobey a rule or order of management." The
investigation included interviews of no fewer than a dozen people.
The record is, however, silent regarding the substance of the
interviews. The investigation findings are stated as conclusions,
and it is less than apparent how certain conclusions were reached,
or on what evidence they rest. This is of some significance to
this standard. As Daugherty stated this standard, how the employee
was given their "day in court" (46 LA at 363) is crucial. It is
not clear how Sherer was afforded this opportunity. The record is
silent on how she was interviewed prior to the meeting that
occurred the day before the County imposed the suspension. At that
meeting, she was given the 2-23-00 memo and afforded twenty minutes
to rebut it. It is apparent from this that the investigation was,
by this time, not a disinterested search for fact. Rather, it had
reached the point that conclusions had been drawn and discipline
was imminent. How it got to this point is not clear. No more
clear is how this afforded Sherer a day in court prior to the time
probably irrevocable decisions had been made. That the County
afforded Union representatives the opportunity to view the
interviews, however, makes it unpersuasive to hold the silence of
the record on this point against the discipline.
In sum, the evidence does not support a conclusion that the
County failed to make a diligent effort to determine fact prior to
the imposition of discipline. However, the evidence regarding
Sherer's opportunity to effectively tell her side of the story
lends a troublesome undercurrent to this conclusion.
As noted above, there is some basis to question the
investigation. On balance, however, the need for, and quality of
the investigation cannot be persuasively questioned under this
standard. The potential conflict of interest noted in the
Corporation Counsel's office at the time that Long's extensive
involvement with JG became known is a serious issue. It tainted
the TPR, and arguably violated Policy 96-2. Even ignoring
potential issues of civil or criminal liability, the issue
concerning the impact of the actions of DHS employees who were
aware of Long's desire to adopt on JG's and JG's parents' rights
That the implementation of Policy 96-2 provoked controversy at
the time of its implementation and at the time of its enforcement
regarding JG must be noted. The policy perspective from the points
of view of those officers of the court who try a TPR and those
individuals who may adopt as a result of a TPR are not synonymous.
The desire to adopt is what makes Long or Fenrich valuable to the
process, and valuable in a more meaningful sense. That Long would
seek to befriend an effectively orphaned child can hardly be
characterized as a vice. However, this does no more than state the
complexity of this situation. That complexity can not obscure the
need for the County to assure truly due process regarding a TPR
proceeding. The investigation sought to assure that the conduct of
DHS employees met standards of legal propriety.
Stark questioned whether interviewed employees should have
been notified of the subject of the investigation, and provided an
opportunity to prepare for the interviews. The investigation
evidently valued spontaneous responses more than Stark thought
desirable. Neither approach can be dismissed as unreasonable. The
issue here is not whether the investigation was flawless, or could
have been improved. Rather, the issue is whether the County made
an investigation that sought fact on which to act. The evidence
will not support a conclusion that the County conducted a sham
investigation to rationalize preconceived notions, or merely "went
through the motions."
The Union questions Podoski's involvement in the
investigation. Standing alone, the involvement of a DHS supervisor
does not taint the investigation. The decision to discipline is
the County's. It is unremarkable, standing alone, that the County
would delegate the authority to oversee the investigation to
Podoski. That the Union was permitted to view the interviews
underscores the soundness of the investigation under this standard.
Thus, this standard affords no persuasive basis to question the
The discipline reflects a determination that Sherer improperly
placed JG in the Fenrich Foster Home and misrepresented information
concerning that placement to further Long's interests in adopting
JG. As noted above, this standard highlights a tension between the
investigation procedure and its conclusions as demonstrated at the
"Conspiracy" may be too loaded a term to ascribe to the
investigation's assessment of Sherer's conduct, but it is evident
the investigation determined Sherer actively colluded with other
County employees to bend the placement process in Long's favor.
Podoski was not unwilling to characterize the effort as a
conspiracy. The 2-23-00 memo underscores this, as does the
Investigation in the "Conclusions" section at paragraphs 3, 4, 5,
6, 7, 8, 9 and 15. In any event, the discipline held Sherer
responsible for acts of omission and commission that furthered
Long's interests, whether or not that can be labeled a
"conspiracy." Broadly speaking, the alleged misconduct focuses on
Sherer's role in three areas: (1) Her role in placing JG in the
Fenrich Foster Home on June 10, 1999; (2) Her failure to place JG
in a legal risk preadoptive home after that date; and (3) Her
failure to report or to document Long's excessive involvement in
The evidence establishes a breakdown in DHS communications
concerning Long's involvement with JG. The evidence adduced at
hearing will not, however, support any of the three broad areas of
misconduct to the degree asserted by the County.
The County faults the initial placement of JG in the Fenrich
Foster Home for essentially two reasons. The first is that the
Fenrich Foster Home is a receiving home, not a legal risk
preadoptive home. The second is that the placement in effect
sought to advance Long's adoptive interests to the possible
detriment of JG's.
It is undisputed that the JG's placement in the Fenrich Foster
Home on June 10, 1999, reflected a bona fide emergency caused by
the closure of the Reagan Foster Home. Sherer's and Wilkens'
testimony that there were no effective placement options to the
Fenrich Foster Home stands uncontradicted. Wilkens' testimony on
this point is noteworthy. She testified candidly that she felt her
discipline rested more on County perception of reality than fact,
and was unbowed in asserting that whatever happened after June 10,
1999, there were no true alternatives to the Fenrich Foster Home.
Sherer's testimony confirmed this, and there is no evidence of any
alternative. Thus, the June 10, 1999 placement into a receiving
home cannot be considered conduct in which the County has a
Whether the Fenrich Foster Home is a legal risk preadoptive
home poses a more subtle point. The evidence affords, however, no
persuasive reason to doubt Sherer's testimony that it was. Podoski
acknowledged that the realistic possibility of adoption makes a
receiving home a legal risk preadoptive home. The State of
Wisconsin plays the significant role in preadoptive placements.
That Sherer lacked the independent authority to effect such a
placement must be considered in assessing her exercise of judgement
on this point. More significantly, her testimony credibly
establishes that she made the placement reasonably believing the
Fenrich Foster Home afforded this option. It is undisputed that
the adoptive process is something akin to a courtship by which the
parties learn about each other prior to making a commitment.
Fenrich had informed Wilkens and Sherer well before JG's placement
that she would like to adopt an infant girl. Sherer knew from past
experience that Fenrich had adopted children originally placed with
her on a receiving basis. Against this background, Sherer's
conclusion that Fenrich might plausibly consider adopting JG was a
reasonable conclusion. This makes the Fenrich Foster Home a viable
legal risk preadoptive placement. Thus, the County has not
demonstrated any disciplinary interest in JG's placement in the
Fenrich Foster Home on June 10, 1999.
This conclusion serves as a preface to the second broad
assertion of misconduct. The original placement was defective,
without regard to the conclusion stated above, if done to advance
Long's adoptive interests to the detriment of JG's. The evidence
on this point is troublesome, but fails to support the County's
assertion that Sherer sought to effect and maintain placement at
the Fenrich Foster Home to further Long's interests.
The most troubling aspect of this allegation is the asserted
misrepresentation by Sherer to Lancour regarding a potential
preadoptive placement in Outagamie County. Lancour's written notes
indicate she discussed this point with Sherer on June 14, 1999.
Sherer could not recall the conversation. This poses no
significant issue, however, since Lancour's notes are consistent
with Sherer's testimony. More specifically, Lancour's notes
indicate that Sherer stated she viewed Fenrich as a legitimate
adoption option and that moving JG so soon would be adverse to JG.
Although Sherer could not recall the conversation, these notes are
consistent with her testimony regarding the appropriate options for
JG. More significant than this is Wilkens' testimony that she
viewed the placement options in the same light, even after the
impostion of a five-day suspension. Moving JG in July of 1999,
even in retrospect, was a poor option to Wilkens. Lancour's notes,
in any event, establish that she was aware of Long's adoptive
interest in JG no later than July of 1999. The notes establish
that she regarded Long as an adoptive option. It is clear that
Lancour attributed no significance to a non-familial relationship
between Long and JG, since it would not give her a "leg up" on
being chosen as the adoptive home. Thus, as of July of 1999, JG's
placement in the Fenrich Foster Home posed no significant issues.
Those issues developed over time as Long became increasingly
involved in a parent-like relationship with JG.
Whether or not it was ultimately in JG's interest to be moved
to Outagamie County in July of 1999 is an unanswerable question
from an arbitration perspective. Even if that was the best
available option, the evidence establishes that Sherer did not
misrepresent fact to Lancour.
Rather, she stated her professional judgement that JG was best
placed where she was. She cannot be faulted for that. There is no
demonstrated disciplinary interest in Sherer's contact with Lancour
or with Sherer's defense of the Fenrich Foster Home as an
appropriate placement in July of 1999.
This poses the most significant aspect of the asserted
disciplinary interest. It is also the most difficult to pin down.
The County's disciplinary interest in DHS employee conduct is
traceable from the TPR, which is itself traceable to the permanency
plan. The County must act to further JG's interests as reflected
in the permanency plan. Conduct that skewed the TPR process toward
Long's adoptive interest, even if only arguably away from JG's,
must be considered conduct in which the County retains a
The difficulty is to equate this policy interest with proven
employee conduct. The Investigation and the 2-23-00 memo manifest
a tension in labeling the improper conduct a conspiracy. The
Investigation's "Conclusions" section points to a concerted effort
to assist Long at Paragraphs 3, 4, 5, 6, 7, 8, 11 and 15. The 2-23-00 memo is similar in
The evidence does not, however, support a conclusion that
there was a concerted effort to skew the adoptive process toward
Long. The Investigation's Conclusions are not internally
consistent regarding a "conspiracy." Paragraphs 9 and 13 of the
Investigation's Conclusions stop well short of affirming an active
and joint effort by Sherer, Wilkens and Howe. Paragraph 9 notes
that these employees' knowledge of "the extent of the contact"
between JG and Long "is uncertain." This is difficult to square
with the assertion that they were actively colluding with Long to
skew the process. More significantly, Paragraph 13 notes that the
three grew "increasingly concerned" regarding contact between JG
and Long. Assuming the goal of their collusion was to skew the
process to Long, it is not clear why any of the three would be
concerned on this point. Assuming the concern was that the contact
went too far, it is not clear why the colluding employees would
choose to approach anyone other than Long.
This tension is well rooted in the evidence. The evidence
establishes not a conspiracy, but a series of often unrelated
decisions that led to a relationship between JG and Long that over
time spiraled out of control. The evidence will not support a
considered effort by Wilkens, Sherer and Howe to further Long's
adoptive interests without regard to JG's. Rather, the evidence
will support a conclusion that Sherer, with other DHS employees,
made a series of decisions in JG's interest that had a potential
and coincidental benefit of advancing Long's adoptive interests.
When Long's relationship with JG went beyond basic care-giving to
a more parental relationship, the potential and coincidental
benefits vanished, and Long's adoptive interests arguably became
adverse to JG's.
Wilkens and Sherer each emphatically denied an active
conspiracy. Their testimony is credible. Wilkens, in particular,
had little reason to disagree with DHS management. She could
expect no benefit from challenging the Investigation's conclusions,
and had already been suspended for five days. More significantly,
corroborative evidence underscores the reliability of that
testimony. The assertion of conspiracy cannot account for any
expression of concern on Sherer's or Wilkens' part concerning the
depth of Long's relationship with JG. Nor can it account for
either employee approaching DHS management rather than Long at any
point in the adoptive process.
A conclusion that a series of decisions made in JG's interest
spiraled out of control can more reliably account for the evidence.
Long, Sherer and Wilkens were candid throughout the placement
process regarding Long's adoptive interest. Fuenger's and
Lancour's statements each manifest that Long made her interest
known and open to them. Neither regarded that interest or a
relationship between JG and Long as inherently objectionable.
Rather, Fuenger and Lancour indicated to Long that her interest
would be considered, but placement would be to the best family for
JG. At no point did either express to Long that she could achieve,
by any means, a preferential position.
No more apparent is any conduct by Sherer to indicate to Long
that she could achieve a preferential position by cultivating a
parent-like relationship with JG. To the contrary, Sherer's
unrebutted testimony establishes she voiced concern to Wilkens from
July to December regarding the developing bond between JG and Long.
Nor is there any persuasive evidence to indicate Wilkens encouraged
Long to develop a parent like relationship to JG. Investigation
Conclusions 8 and 9 are well rooted in the evidence. They indicate
the relationship spiraled beyond Wilkens' comfort level, without
apparent active involvement on her or Sherer's part.
Wilkens and Sherer's testimony is, in any event credible.
Their testimony was not that of conspirators. Sherer, at points,
lays responsibility for the development of Long's relationship with
JG on Wilkens. This is the testimony of a conspirator only to the
extent that the conspirator is seeking to put the rap on a co-conspirator. This is not,
however, how the testimony played out,
as Sherer's words eloquently state:
I hazard to think what it would have been like for me in that
agency had I done that without the support of any supervisor. For
a long time, months, in my agency, my supervisor, day in and day
out, was literally sometimes the only person who spoke to me,
because our child welfare division as a whole, the people that
found about about this from Becky, were so angered that this
happened to poor Becky, that violated these policies (Tr. at 152-153).
How Sherer or Wilkens became isolated from workers who
Long after conspiring to assist Long can not be accounted for by a
conclusion that they acted as surrogates for Long's adoptive
interests. They can, however, be accounted for by a conclusion
that they ultimately had to bring Long's relationship with JG to
light when it became apparent the relationship had transgressed
In sum, the evidence will not support a conclusion that Sherer
acted in a conspiratorial fashion to advance Long's adoptive
interests to the detriment of JG's. Rather, the evidence shows
that Sherer and Wilkens placed JG in the best available care
facility in June of 1999, and hoped that the placement could lead
to adoption. This cannot be said to be anything other than the
appropriate exercise of judgement.
This cannot, however, account for the full complexity of the
evidence on this point. It is undisputed that Sherer and Wilkens
agreed on a placement in which Fenrich was not the only adoptive
possibility. Sherer and Wilkens both testified that they
understood and supported the policies underlying Policy 96-2. Both
understood that Long hoped to adopt JG, and intended to cultivate
a relationship with her. Each became uneasy with that
relationship, although at different points. It is apparent that
each understood the placement posed a potentially delicate
In spite of this, by mid-December of 1999, the TPR proceeding
that affected JG's future became subject to a voluntary dismissal
due to the absence of documentation of Long's relationship with JG.
That relationship had grown, in all probability, to include
overnight stays at the residence of a potentially adopting parent,
whom JG referred to as if a parent. The Investigation's
Conclusions that point to a conspiracy may overstate the evidence,
but they do not overstate the precarious position the County had
become boxed into.
The Union asserts that Sherer acted as a whistle-blower, and
exposed the relationship to her own detriment. The strength of the
Union's position against the investigation is that it
oversimplified the process by which the relationship developed.
This becomes the weakness of the Union's assertion on this point.
The assertion that Sherer acted as a whistle-blower seeks to make
this case into one of clear right versus wrong. Placing fault on
Wilkens ignores that it is the credibility of her testimony that
weakens the County's assertion of conspiracy-like actions on
Sherer's and Wilkens' part. Wilkens' testimony indicates more than
Sherer's will acknowledge that Fenrich accepted placement of JG to
advance Long's adoptive interests. The credibility of Wilkens'
testimony on other points makes this hard to ignore. In any event,
it is apparent from Sherer's testimony standing alone that she was
concerned about Long's relationship with JG virtually from the
The evidence thus establishes that Sherer was concerned about
the propriety of the developing relationship of Long and JG. That
JG's file was silent on this point is ultimately a departmental
responsibility, but the assertion that Sherer played no meaningful
role in that silence is not well founded. Whether Long accurately
portrayed an understanding between herself and Howe in August of
1999 is unclear, since Sherer took no action to question it.
Whatever knowledge of departmental supervisors had of the
relationship between JG and Long cannot obscure that Sherer took no
action to discuss her concerns with Howe, Siebecker or any member
of the Corporation Counsel's Office. Nor does the evidence
indicate she acted to document her concerns to JG's file.
The County's assertion that Sherer participated in a
conspiracy to benefit Long ultimately fails because the evidence
indicates that Sherer acted in JG's interests rather than Long's.
The defense that Sherer could do nothing beyond what she did due to
chain of command issues fails because the persuasive force in the
defense of her actions rests on the advancement of JG's interests,
not on DHS chain of command interests. Without regard to the
statutory significance of the term, to be a "whistle-blower" in a
position of fundamental responsibility such as hers would demand
action on her part consistent with JG's interests. Whether or not
she had to upset
the chain of command to advance her concerns is less significant
than whether she took effective action on JG's behalf. The silence
of the file on the developing relationship between JG and Long does
not manifest such action.
In sum, the County has a disciplinary interest in the conduct
of DHS employees that obscured a relationship between JG and Long,
which ultimately grew to the point that it jeopardized the TPR and
JG's placement in the Fenrich Foster Home. The evidence will not
support a conclusion that Sherer acted to hide that relationship.
Nor will the evidence support a conclusion that she acted, prior to
December of 1999, in a fashion that could effectively bring her
concern with the relationship into the open.
The facts posed by the grievance are unprecedented. Long's
involvement in the placement that prompted Policy 96-2 did not
result in discipline. Thus, there is no historical record against
which to determine the "evenhandedness" of the County's imposition
of discipline. The discipline imposed reflects the degrees of
culpability stated in the Investigation. Wilkens and Sherer
received significant suspensions, placing them on the threshold of
discharge. This reflects the County's assessment of the
significance of their participation in a conspiracy of omission or
commission to bend the placement process in favor of Long's
interest in adopting JG. Wilkens' role as supervisor dictated to
the County a harsher level of discipline. The discipline, standing
alone, cannot be faulted as discriminatory. This, conclusion,
however, begs the question whether the degree of culpability found
by the investigation has been proven.
The discipline will not withstand scrutiny under this
standard. As noted above, the discipline is rooted in the
Investigation's determination that Wilkens and Sherer acted on
Long's behalf to the detriment of JG's interests. This was, under
Article 8, a situation demanding immediate suspension or discharge.
The length of the suspension makes it evident that she stood on the
threshold of discharge. This is an appropriate, if not lenient,
sanction for the alleged conduct. Not surprisingly, Wilkens' and
Sherer's testimony candidly acknowledge this. Wilkens noted the
penalty "could have been worse . . . (i)n regards to what the
County believes took place" (Tr. at 96). When confronted with the
2-23-00 memo, Sherer feared for her job.
As noted above, however, this level of conduct is unproven.
The evidence does not support the existence of misrepresentation,
nor does it support a conclusion Sherer acted on or after JG's
placement in the Fenrich Foster Home in a fashion designed to skew
the adoptive process in Long's favor. Beyond this, Bodnar and
Thomas testified that Sherer's work history, which spans twenty-one
years, is exemplary. Under this standard these considerations must
be accounted for in assessing the propriety of the discipline.
More significantly, Article 8 specifies the normal course of
discipline and starts that process at "written reprimands" except
"in situations calling for immediate suspension or discharge." The
allegations that support immediate suspension are unproven. Thus,
the County's disciplinary interest must start with a written
The Award entered below makes Sherer whole for wages and
benefits lost due to the suspension, expunges her file of
references to the suspension and permits the County to enter a
Before closing, some discussion of the reprimand is
appropriate, at least in my view. The remedy does not demand a
wake up call to an unreceptive employee. Sherer has an exemplary,
long-term record. The issues posed in this case are difficult and
subtle. Discipline is typically neither. The purpose of a
reprimand is to counsel. The basis of the reprimand is the silence
of the file on Long's relationship to JG. The significance of the
reprimand is not to inflict sufficient pain to wake Sherer up.
That has no basis in the evidence, and is demeaning on both ends of
the disciplinary process. To counsel, the reprimand should
clarify, with the benefit of the investigation and hindsight, how
DHS management believes Sherer could have effectively acted. From
at least my perspective, the counsel should specify what she failed
to do, when she failed to do it and how she should have responded.
If she should have discussed her concerns with Siebecker and Howe
after her conversation with Long in August of 1999, the reprimand
should say so. If the County believes she should have spoken with
personnel other than Wilkens, the reprimand should specify when and
to what person(s) she should have spoken. If the County believes
she should have documented her concerns to the file, the reprimand
should specify when, to whom and in what form she should have done
so. The silence of the file regarding the improper relationship is
a departmental issue, and the reprimand should specify Sherer's
individual responsibility to address it.
The County violated Articles 1 and 8 of the Labor Agreement
when it suspended Virginia Sherer for three days for not properly
performing her duties as a Placement Coordinator and providing
false information to others involved in this case.
As the remedy appropriate for the County's violation of the
just cause requirement of Articles 1 and 8, the County shall
expunge from Virginia Sherer's personnel file(s) any reference to
her three-day suspension from work on March 1 through March 3,
2000. In addition, the County shall make Virginia Sherer whole by
compensating her for the difference
in wages and benefits she received for the period from March 1
through March 3, 2000 and the wages and benefits she would have
earned for that period but for the suspension. The County may,
however, amend her personnel file(s) to reflect the issuance of a
Dated at Madison, Wisconsin, this 28th day of June, 2001.
Richard B. McLaughlin, Arbitrator