BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DOUGLAS COUNTY DEPUTY SHERIFF'S
LOCAL 41 OF THE LAW ENFORCEMENT EMPLOYEE
OF THE WISCONSIN PROFESSIONAL POLICE
(Kim Keskinen Discharge Grievance)
Mr. Richard Thal, WPPA General Counsel, on behalf of the
Lindner & Marsack, S.C., by Mr. Oyvind Wistrom, on behalf
of the County.
The above-captioned parties, herein "Association" and "County", are signatories to a
collective bargaining agreement providing for final and binding arbitration. Pursuant thereto,
was held in Superior, Wisconsin, on March 7, 2001, at which time the parties agreed that I
retain my jurisdiction if the grievance is sustained. The hearing was transcribed, and the
thereafter filed briefs that were received by April 27, 2001.
Based upon the entire record and arguments of the parties, I issue the following
The parties have agreed to the following issue:
Did the County have just cause to discharge grievant Kim
Keskinen and, if not, what is the
Jailer Keskinen was a part-time jailer with the County from June 23, 1994, to
June 28, 1996.
She was re-hired as a part-time employee in July, 1997, and she began full-time employment
as a jailer
on November 2, 1997.
As related in greater detail below, Douglas County Sheriff Richard Pukema on
July 20, 2000,
issued Keskinen an "Intent to Discipline" (County Exhibit 10), because of her alleged failures
properly serve inmates certain medications and to properly secure certain used needles in the
block. She was ultimately suspended with pay on September 13, 2000 (County
Exhibit 6), and she
was terminated on November 27, 2000, via a letter from Pukema (Joint Exhibit 3), which
. . .
You were involved in personal relationships with various
inmates including Roy Aho, who you
repeatedly visited at the Federal Prison Camp, located in Duluth, Minnesota. You did not
receive permission to do so from the Douglas County Sheriff's Department.
You were served with a subpoena
in a criminal case. Jail Administrator Pulford instructed you not
to discuss the subpoena with other people. Contrary to Mr. Pulford's instructions, you
approached and discussed the subpoena with the inmates, ["H.S." and "W.T."]. (For
purposes of confidentiality, I have used initials rather than actual names for certain
On or about May 9, 2000, you
contacted ["B.J."] and threatened her by demanding that she return
property that allegedly belonged to an inmate to the Douglas County Jail.
On or about July 5, 6, and 7, 2000,
you improperly passed out medications to inmates by leaving
them on the inmates food shelf. You also left a "sharps" container with hypodermic needles
unattended in cellblock D where inmates could have access to the needles.
. . .
Keskinen grieved her discharge on that same day. (Joint Exhibit 2).
Sheriff Pukema, who took office on January 4, 1999, testified that he in May, 1999,
aware that Keskinen planned on marrying former inmate Roy Aho who was slated to be
released from prison; that her relationship with Aho was of great concern to other local law
enforcement agencies; that he told Keskinen in May or June, 1999, he was greatly concerned
her relationship with Aho and that she could not allow her relationship to affect her job in
capacity; that Keskinen then confirmed that she and Aho intended to live together and that
intended to marry; and that she then assured him that their relationship would not affect her
Pukema at that time never told her that she had to break off her relationship with Aho.
Pukema again spoke to Keskinen in July, 2000 about her prior relationship with
"T. J.". Keskinen replied that she did not have a relationship with "T.J." and that she had
permission from former Acting Jail Sergeant Joseph P. Matilla to see Aho. Pukema had a
conversation with Keskinen wherein she admitted to seeing "T.J." before her employment.
Pukema also said that Keskinen had acted improperly when she telephoned "B.J." and
her she would be jailed if she did not immediately return a cell phone and jacket owned by
Pukema added that Keskinen was subpoenaed in a very high profile case; that she
by Jail Administrator Arthur Pulford not to have any contact with inmates "H.S." and
were in the County's jail at the time and who also were charged with fire-bombing the
Attorney's house; and that he was subsequently told that Keskinen had asked them questions
the subpoena. Pukema said that this latest incident led him to suspend Keskinen with pay
September 13. (County Exhibit 6). He also testified that Keskinen in July, 2001, had
medicines and a Sharps container, which contained used hypodermic needles, out in the open
inmates could get them and use them as weapons. He then also spoke to her about a
she had received from a former inmate.
On cross-examination, Pukema stated that he in 1999 did not discipline Keskinen over
relationship with Aho because he was "very conflicted as to what I could do with a marital
relationship", and that he did not discipline Keskinen earlier in 2000 because "there was a
of issues that had that had been piling up."
Chief Deputy Charles Law testified that he in 1999 transferred former inmate Aho to
different jail because of his relationship to Keskinen and because he believed there was a
based on that relationship. He also said that he asked "W.T." and "H.S." whether
Keskinen has spoken to them about her subpoena; that "They said yes"; and that
"H.S." then told her
to speak to his attorney and that "W.T." told her to tell the truth. He also related how an
complained to him about Keskinen's failure to properly secure the Sharps container. On
cross-examination, Law acknowledged that Keskinen's relationship with Aho was well known
Jailers; that Jailer Angel Swanson's father was once jailed; and that his incarceration did not
any great problems.
Kathleen Brown, a Probation and Parole agent with the Wisconsin Department of
Corrections, testified that "B.J.", who was on probation and who thus was required to report
enforcement contacts, told her that Keskinen had threatened her over the telephone by saying
could be jailed if she did not immediately return "A.N."'s property and that "B.J." was upset
she hadn't stolen those items, but believed that Keskinen could charge her with theft. She
because of Keskinen's conduct regarding certain jail inmates, her department "has been
share information with the jail for fear that this information is relayed back." Brown by
August 14, 2000, informed Pukema about this situation (County Exhibit 8).
On cross-examination, she acknowledged that she could not give a single example of
Keskinen ever revealed confidential information and that she never spoke directly to
her contacts with inmates. She also said that "B.J." initially lied about her involvement in a
Former Acting Jail Sergeant Matilla testified that Keskinen spoke to him about her
relationship with Aho and that, "to the best of my recollection, no" she never asked him for
permission to maintain a relationship with Aho.
Former detective Joe McKenzie who was asked by Pukema to investigate the
testified that "B.J."'s grandfather had told him that he had spoken to Keskinen about having
return some property. McKenzie also said that "B.J." had told him she had spoke to
told her she would be "in a lot of trouble" unless she brought back the property. He also
felt threatened by Keskinen. McKenzie prepared a report of what he had learned (County
Thomas M. Renz - a part-time jailer/cook, transport officer, and bailiff - on
2000, overheard inmates "W.T." and/or "H.S." tell the other one that Keskinen the night
spoken to him and that she was nervous about the trial. Renz later asked "W.T." whether
had spoken to him and he said that she had and that he had told her he was unable to talk to
the trial. Renz prepared a report of the incident (County Exhibit 16), and said that he was
because there might be a mistrial because of Keskinen's comments and because "W.T." or
might testify about the incident and thereby put him on the spot if he did not report it. He
when sequestered witnesses are subpoenaed, they cannot talk to each other, which is why he
afraid of a mistrial.
Jail Administrator Pulford testified that other law enforcement officials were
concerned" with some of Keskinen's activities and her relationship with Aho in part because
her embrace Aho when he was in prison and that, as a result, the training program had to be
He added that other law enforcement officials "were concerned about information being
probationers" and with "transport concerns" and that the department now has "a very good
relationship" with other law enforcement departments because Keskinen no longer works
explained that it is improper for a jailer to have a relationship with an inmate because:
". . .They can provide favors to inmates. They can allow
contraband to be introduced to the
institution. Inmates can get special treatment. In fact, most areas I was trying to
look this up today
and I couldn't find it all, but most areas it's criminal conduct for a staff member to have that
He said that he told Keskinen "to respond to the subpoena" and that if she had any
"she needs to deal with the prosecution team, she needs to call them, talk to them about the
situation." He also stated that he personally spoke to "W.T." and "H.S." and that both of
separately told him "Miss Keskinen had come to see them and asked them about why she
subpoenaed, what she was supposed to say", and that both of them told her to "go to court,
truth." Pulford also said that Keskinen had denied leaving medications unattended in the
on July 6, 2000, when he asked her about it in July, 2000.
On cross-examination, he acknowledged that he had no information that Keskinen had
revealed any confidential information. He also stated that a social involvement between an
and a jailer does not represent an automatic violation of jail policies.
Jailer Robbi R. Sherlock (a/k/a Lindberg), testified that Keskinen between June,
2000, left the Sharps container out in the cell block on at least five occasions and that
July 6, 2000, left medicine in the feeder tray and that "she yelled to the inmates to get up
and get the
medication. . ."
Keskinen testified that she was engaged to Aho and that they were living together;
told former Acting Jail Sergeant Matilla about her relationship with Aho in the summer of
she subsequently asked Matilla for permission to have contact with Aho; and that Matilla
gave it. She
also said that she opened a letter from former inmate "D.H." in front of Captain Pulford.
that she never spoke to "W.T." or "H.S." about her subpoena; that Pulford never told her
should not have any contact with anybody; and that he also never told her to go to the
team if she had any questions about her subpoena. She also denied ever speaking to "B.J."
return of "A.N."'s property and said that she never told anyone that "B.J." could be jailed if
not return that property. She, instead,
claimed that she spoke to "B.J."'s grandfather about the property and that the jacket
As for leaving needles in the Sharps container, she said: "I just honestly don't
it"; that, "it's been so long since this happened"; that, "I don't remember leaving the Sharps
in there"; that, "I just don't remember doing it"; and that, "I just said I don't remember
(Despite these denials, and faced with the testimony from certain witnesses would testify that
saw Keskinen leave out the Sharps container on several occasions, the Association stipulated
Keskinen in July, 2000, left the Sharps containers out on more than one occasion.)
Asked whether she in July, 2000, ever left medications out on a tray shelf and
did not witness the inmates take their medications as she was required to do, she replied: "I
am disputing that that happened, because I don't remember doing that, either." As for
on July 12, 2000, admitted to Jail Administrator Pulford that she had left the medications
replied: "I don't recall it happening."
Recalled as a witness, Keskinen testified that she was never disciplined or counseled
relationship with Aho before she was terminated on November 27, 2000. She also said that
was wired in an unsuccessful attempt to get incriminating evidence on "A.R." who, along
"W.T." and "H.S.", had been charged with fire-bombing the District Attorney's home; that
and "H.S." must have known about the wire and that she believes they have lied against her
they were angry over the wire attempt; that she never talked to "W.T." and "H.S." about her
subpoena; and that to protect herself, she always insisted that another jailer accompany her
dealt with them in jail.
On cross-examination, she denied ever telling "B.J."'s grandfather that "B.J." would
trouble if she did not return the property. She also disputed Sherlock's testimony that she
out the Sharp's container on at least five occasions and said that she could not remember
ever told Pukema in June, 2000 July, 2000, that Matilla had given her permission to
POSITIONS OF THE PARTIES
The Association claims that the County lacked just cause to discharge Keskinen
failed to warn her of any disciplinary consequences of continuing her relationship with Aho;
it failed to prove that she approached inmates "W.T." and "H.S." and discussed her
them; and because, "The penalty of termination is far too severe in this case." The
therefore requests a make-whole order that includes Keskinen's reinstatement and a backpay
The County asserts that it had just cause to terminate Keskinen because she knew that
relationship with Aho created a conflict of interest under the then-existing County policy;
improperly distributed medications and needles; because she improperly spoke to "W.T." and
about their trial after being expressly told by Pulford that she should not do so; and because
improperly threatened "B.J." over the return of the property. The County adds that since its
Department is a "paramilitary organization", it is particularly egregious for a Sheriff's
employee to impair the proper functioning of the Department, which is why there should be
degree of deference to the County's judgment regarding the discipline nature of an
In agreement with the County, I find that the County had just cause to discipline
over her failure to properly serve medications to inmates in June, 2000-July, 2000, and over
repeated failure to properly secure the Sharp's container in the cell block in June-July, 2000.
I credit Jailer Sherlock's testimony that Keskinen on July 6, 2000, "yelled to the inmates to
and get the medication. . ." Since Keskinen was trained on how to serve medications and on
properly secure the Sharp's container, I further find that Keskinen's failure to properly
important functions represented a wanton disregard of her job duties. Keskinen therefore
tell the truth to Pulford in July, 2000, when she denied leaving the medicines out on July 6,
I also discredit her claim that Jail Administrator Pulford never told her to speak to
prosecution team if she had any questions over her subpoena. For while Keskinen denies
receiving any such instruction, I credit Pulford's testimony that he gave her that directive.
In addition, Keskinen tried to shade her testimony when she was asked whether she
Sherlock's testimony that she had left the Sharp's container out more than five times, to
. . .
Q But if you don't remember if it happened, it's
possible it happened that many times?
A Well, in the report that we
have she only states it happened once.
Q Okay. But her testimony
today, you were here when she testified, were you not, or were you
A Yeah, I was here.
Q And her testimony was that it was between five
and 12 times?
A And I don't think that it
Q Okay. But if you don't
remember whether you did it the one time, whether you remember
doing it at all, how can you say that's accurate or not?
A I guess I don't know.
(Transcript, p. 322).
. . .
I don't know either.
Keskinen's credibility also must be considered in determining whether she truthfully
about her relationship with former inmate Aho.
As to that, the record clearly establishes that Keskinen's relationship along
other incidents have severely undermined her status within the Superior law
community, as Pukema, Brown, and Pulford all credibly testified to that general effect.
Moreover, Keskinen either knew or should have known that her close relationship
which led her to visit him about 50 times in only a four-month period when he was
in the federal
prison would raise questions about her ability to serve in a law enforcement capacity.
was required to disclose her relationship with Aho under the Department's Policy and
Manual (County Exhibit 4), which states in pertinent part:
. . .
Conflict of interest:
A set of circumstances which
prevent a member of the department from acting fairly
and impartially in accord with his/her oath, the orders of superiors, or law.
Source of conflict of
Primarily, a relationship based
upon favors, gratuitousness, friendship, blood or
marital ties, outside employment, financial obligation and other reasons. A conflict
does not necessarily arise from any of these relationships.
Unacceptable conflicts. The department recognizes that not all conflicts are
condemned. The key consideration is whether the conflict of interest is (a criminal, (b does
fair and impartial action, or (c has the potential to prevent fair and impartial action, or (d
members of the department reasonably certain that fair and impartial actions will not occur.
Responsibility for eliminating and reducing conflicts. Each member of the
is responsible for insuring that he/her is engaged in no illegal conflicts. If doubt exists, that
should resolve it against the activity or relationship until a definite answer can be obtained.
is always available from the Sheriff. Each member of the department is
responsible for seeking to
reduce to a minimum all actual and potential conflicts of interest. (Emphasis added).
Disclosure of conflicts. It is the responsibility of each member of this
disclose a real or potential conflict of interest to the Sheriff or senior deputy available,
upon realizing that the conflict exists. Some conflicts of interest may be more readily
apparent to a
member other than the one involved, and such a conflict would be brought to his/her
immediately. (Emphasis added).
The ranking deputy to whom the conflict is
disclosed shall immediately determine whether:
A conflict or potential for
The real or potential
existence of a conflict of interest will affect fair and impartial action in
a situation at hand.
An emergency situation
exists which is of severity or importance as to override the presence
of a conflict until alternative means of handling a situation are available.
Alternate means of handling a situation are
All conflicts of interest shall be reported to
the Sheriff immediately.
Effect. Effect of disclosure or failure to disclose. Disclosure by a member of
of interest that is not unlawful shall be taken as a responsible action by a professional not as
of wrongdoing. Failure to disclose a conflict of interest is unprofessional conduct. Failure
a potential conflict of interest can be evidence of unprofessional conduct.
The key phrases here are the ones stating that "Guidance is
always available from the Sheriff" and that
disclosure must be made "to the Sheriff or senior deputy available. . ."
Here, Keskinen claims that she twice revealed her relationship to former Acting Jail
Matilla and that he on the second occasion gave her permission to see Aho. Matilla, who
was in the
bargaining unit, testified that he did not recall ever giving such permission.
However, it is immaterial whether Matilla gave her permission since Pukema himself
about the relationship in May or June, 1999, and he then chose not to do anything about it
to tell Keskinen that she should not let her relationship interfere with her work. In addition,
Administrator Law knew about their relationship and he also never told Keskinen to end it.
Given management's prior knowledge and lack of forewarning, I find that the County
just cause to discipline Keskinen over her relationship with Aho. For as the Association
points out: "it was management's responsibility to forewarn Keskinen if she were to be
for visiting Aho." By failing to do so, the County violated one of the most important
safeguards encompassed by the just cause standard. See Elkouri and Elkouri,
Works, p. 930-933 (BNA, 5th Ed., 1997).
Left then, is Keskinen's supposed conversation with "B.J." and her supposed contacts
"H.S." and "W.T." about her subpoena. Since neither "B.J.", "W.T." nor "H.S." testified,
all of the
statements attributed to them by various County witnesses constitute hearsay. Since hearsay
considered as evidence, the real question here centers on how much weight, if any, can be
the hearsay statements of individuals who are not subjected to cross-examination and whose
statements were flatly contradicted by a witness who did testify.
As I related at the hearing, I am reluctant to credit the hearsay statement of
do not testify over the testimony of witnesses who do testify and who are subjected to the
cross-examination. Hence, such hearsay statements ordinarily will be disregarded
unless the record shows that a witness has not testified truthfully and unless all of the
circumstances show that the hearsay statements appear to be true.
Here, "B.J." had no reason to falsely claim that Keskinen had spoken to her over the
telephone and that Keskinen then threatened that "B.J." could be jailed if "B.J." did not
return some property. Moreover, it would have been foolhardy for "B.J." to have fabricated
claim because, if proven false, it could lead to revocation of "B.J."'s probationary status. In
the record contains "B.J."'s statement which she reviewed and then initialled. (County
Since Keskinen was not a credible witness, I discredit her denial and find that she did,
"B.J." over the return of certain property.
As for "W.T." and "H.S.", the Association asserts that they had a "motive to harm
because they "knew that Keskinen had been wired to gather incriminating evidence" against
However, neither "W.T." nor "H.S." could have known that Pulford had instructed
speak to the prosecution team about her subpoena. As a result, "W.T." and "H.S." had no
to fabricate a story about her subpoena. In addition, since Renz originally overheard "W.T."
"H.S." talking to each other about Keskinen's subpoena, this is hardly a case where they
to a jail administrator so that they could get Keskinen in trouble.
As related above, I do not credit Keskinen's claim that Pulford never told her to
prosecution team if she had any questions over her subpoena. Her failure to truthfully relate
instructions along with the other holes in her testimony leads to the
conclusion that "W.T." and
"H.S."'s hearsay statements must be credited over her denials.
The County therefore had just cause to discipline her over her failure to properly
Sharps container, her failure to properly secure medications, her threat to "B.J.", and her
"W.T." and "H.S." about her subpoena. Any one of these episodes warranted the imposition
severe discipline. When they are all combined, I find that the County had just cause to
Keskinen since she no longer can be trusted to perform her job properly. The Association's
for a lesser punishment is therefore denied.
In light of the above, it is my
That the County had just cause to discharge grievant Kim Keskinen;
That her grievance is therefore denied.
Dated at Madison, Wisconsin this 19th day of July, 2001.