BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN PROFESSIONAL POLICE
EMPLOYEE RELATIONS DIVISION
Ms. Victoria L. Seltun, Weld, Riley, Prenn
& Ricci, S.C. 3624 Oakwood Hills Parkway, P.O. Box
1030, Eau Claire, Wisconsin 54702, appeared on behalf of the County
Mr. Mark R. Hollinger, Katarincic & Hollinger, LLC, 205
East Wisconsin Ave., Suite 330,
Milwaukee, Wisconsin, 53202, appeared on behalf of the Association
On January 22, 2001 Chippewa County and the Wisconsin Professional Police
filed a request with the Wisconsin Employment Relations Commission seeking to have the
Commission appoint William C. Houlihan, a member of its staff, to hear and decide the
matter. A hearing was conducted on July 18, 2001 in Chippewa Falls, Wisconsin. A
the proceedings was made, and distributed on August 13, 2001. Post hearing briefs were
exchanged by October 18, 2001.
This Award addresses a disciplinary suspension issued to Deputy Thomas Thornton.
BACKGROUND AND FACTS
Deputy Thomas Thornton is a 10 year veteran of the Chippewa County Sheriffs
Prior to his employment with Chippewa County, Deputy Thornton worked as a law
officer for 10 additional years. Deputy Thornton has not been disciplined prior to the
rise to this proceeding.
On September 16, 2000 Deputy Thornton and Deputy Tony Marcijanik responded to
trespassing complaint which alleged that a male suspect was going in and out of
building. Upon arrival, Deputy Thornton discovered a man slumped over the front seat of
complainant`s pick-up truck inside a machine shed. The subject, D.A.R. was evidently
passed out, was not dressed for the cold weather, was wet below mid waist, and was covered
grass and mud. The subject appeared to be intoxicated and Thornton noticed a strong odor
intoxicant on the man`s breath. Thornton asked the man if he had been drinking and the man
that he had. Thornton asked how the man had gotten to his location and was given a number
different and conflicting answers, including that some girl may have dropped him off, but
he had driven to the site.
The man variously indicated that he believed he was in Appleton and that he was
Thornton took D.A.R. for an hour long ride in a fruitless search for the man`s car and
Ultimately Thornton abandoned the search, and arrested the man for trespass, obstructing,
a motor vehicle while intoxicated, third offense, and operating after revocation. D.A. R.
transported to Victory Medical Center, where a blood draw was performed by hospital staff.
was then transported to the County jail where he was booked and held for seven hours, until
alcohol level fell below 0.04, per Chippewa County Jailers policies and procedures.
Thornton unsuccessfully seached for the man`s car the next morning. On, or about,
September 25 Thornton approached Lt. Gene Gutsch to inform him that he was concerned
O.W.I. arrest in that no vehicle had been found to support the arrest. Gutsch replied that the
was inappropriate, and should not have been made. Ultimately the District Attorney
to prosecute the case because he believed he had less than a 50% chance of success, due to
of a vehicle, a critical element in an O.W.I. case.
On November 2, 2001 Deputy Thornton made a felony arrest of a subject, R.S. for
a motor vehicle while intoxicated, third offense. Thornton was dispatched to the scene of the
by a report of a black car in a ditch with a male subject passed out in the front seat and a
baby in a
car seat in the back. As he proceeded to the scene, Thornton received a dispatch indicating
County was attempting to locate R.S., and further indicated that R.S. may be operating while
intoxicated. Upon arrival at the scene Thornton
encountered two men and a woman holding a baby standing near a black car in a ditch.
One of the
men was R.S., who admitted to driving the car, falling asleep, and who indicated that the car
into the ditch. R.S. admitted to buying a 12 pack of beer, and drinking all day.
During the conversation with Mr. S., Thornton detected the odor of beer on Mr. S.
S. was occasionally incoherent when he spoke. Thornton observed a 32 oz. bottle of beer in
seat of the car, with 3-4 oz. of beer left. During their conversation, S. told Thornton that his
a little sore, that he had a previous spinal injury. Thornton determined not to conduct a field
test, due to slippery road conditions, and the potential for injury to Mr. S.
Thornton placed R.S. under arrest for operating a motor vehicle while intoxicated and
transported Mr. S. to the Chippewa County jail. The fact that a minor child was present in
subjects the offense to a penalty enhancer, which lifts the charge to felony status. Thornton
the charge and enhancer to S. and sought to test for alcohol. S. vigorously objected, and
submit to an alcohol test. Thornton then determined to have S. transported to the hospital
involuntary blood draw. S resisted, and it required three Sheriff`s Department employees to
S. and place him in a transport belt and handcuffs. S. continued to resist transport to the
exhibiting violent behavior such as wrestling and kicking at jail employees. In this context
determined not to transport S. to the hospital. He indicated his decision was the product of
concern for the safety of the hospital staff, S., and himself. Departmental personnel were
administer a PBT test, which registered a .21 reading. S. was charged with operating under
influence, and operating after revocation.
Deputy Thornton should have, but neglected to fill out a Notice of Intent to Revoke
connection with S. arrest. The form is not a standard inclusion in the OWI packet, and
On November 7, 2001 Lt. Gutsch met with Deputy Thornton to discuss Gutschs`
relating to Thornton`s handling of the two OWI arrests. Gutsch was concerned about
understanding of departmental policies and the elements of the OWI offenses. There was no
of discipline at the November 7 meeting. On November 16, 2000 Lt. Gutsch received notice
disposition of the charges in the D.A.R. case, i.e. a dismissal. This notice prompted an
and investigation into the matter, which led to a determination that a significant disciplinary
suspension would be levied, along with remedial training.
On December 13, 2000 the following letter was issued:
December 13, 2000
Deputy Thomas L. Thornton
Letter of Suspension
This letter is to inform you that you are
suspended from duty without pay for a period of three
weeks commencing December 13, 2000. You will be assigned to the B shift when you
to work on January 4, 2000. You will be assigned to this shift for an indefinite period of
first day back to work will consist of your meeting with Captain Folska and Lieutenant
remedial training in arrest, search and seizure matters.
Tom, the reason for this suspension is two
fold. First, you violated a subject's civil rights by
arresting him without probable cause. This arrest led to false imprisonment. You also took
subject to a hospital for a blood draw, since the arrest was invalid, this blood draw
illegal search. You are well aware that probable cause is needed to arrest a subject and take
custody. This incident took place on September 19 (sic), 2000. The false arrest that took
a very serious issue as it not only violated that individual's civil rights, you also opened the
County Sheriff's Department up to liability from civil suit by this individual. This
is meant to be remedial in nature and to put you on notice that the Chippewa County
Department will not tolerate this type of behavior.
Second, you failed to follow procedure in
the arrest of a subject for Operating Under the
Influence with a minor in the vehicle. It is our duty to follow the steps needed to collect
this matter. If you felt the subject would resist, you had every option to call upon the
Police Department for assistance in a forced blood draw.
You have violated county policy, as well as
county work rules. The specific work rules you
violated are 4.62(7) and 4.62(21). Our policy states that under the Primary Responsibilities
Deputy Sheriff that we are to ensure the rights to all to liberty, equality and justice.
It is our duty as law enforcement officers to
uphold the laws and constitutional rights of every
citizen. While some arrest mandates may not be ideal, it is our job to follow proper police
I fully expect this to be a learning
experience and that you will return to duty with an attitude of
professional, courteous treatment of all citizens that this position demands of you. You are a
professional and have many valuable years of service left with this agency.
Douglas J. Ellis /s/
Douglas J. Ellis
Subsequently, on December 20, the Sheriff issued the following statement of charges:
December 20, 2000
Thomas L. Thornton
RE: Statement of Charges
Dear Deputy Thornton:
I am, by this letter, giving you formal
notice of the summary of charges as follows:
On September 16, 2000 you made an arrest
for criminal offense of operating a motor vehicle
under the influence of an intoxicant. As the arresting officer you failed to meet the elements
offense and establish probable cause for the arrest. This violates the civil rights of the
subject and led
to false imprisonment and an illegal search. This exhibits Violation of Code of Ethics
Policy, poor work performance as referenced in Department Policy and County Work Rules.
On November 3, 2000 you made a felony
arrest for operating while intoxicated 3rd offense with
a minor in the vehicle and failed to follow procedure in the arrest. No field sobriety test was
no Notice of Intent to Revoke completed, and no blood taken. This again demonstrates poor
performance as referenced in Department Policy and County Work Rules.
I am recommending to the Grievance Committee you be
suspended for 15 working days. If you
choose to request a hearing within the allotted 3-week time limit per State Statute 59.26(8)(b)
may do so. Otherwise the Grievance Committee will be hearing this case at a date chosen by
committee. At such hearing appropriate disciplinary action will be determined.
Douglas J. Ellis /s/
Douglas J. Ellis
On January 11, 2001 Thornton filed a grievance related to his suspension.
The parties stipulated to the following two issues;
1) Did the County have just cause for the discipline
of Deputy Thomas Thornton for his arrest
of D.A.R. on September 16, 2000? If not, what is the appropriate remedy?
2) Did the County have just
cause to discipline Deputy Thomas Thornton for his arrest of R.S.
on November 2, 2000? If not, what is the appropriate remedy?
Additionally, the Association advances the following:
3) If the Arbitrator determines that some suspension
is warranted, should Deputy Thornton have
his health insurance, sick time, and vacation benefits prorated for the duration of the
RELEVANT PROVISIONS OF
RELEVANT CONTRACT LANGUAGE
Article 2 Management
The County possesses the sole right to operate the County
government and all management
rights related to the same, subject only to the provisions of this Agreement, past practices,
applicable law. Except as expressly modified by other provisions of the contract, the County
possesses the sole right to operate the County and all management rights repose in it. These
include, but are not limited to, the following:
A. To direct all operations of the County;
B. To hire, promote,
transfer, and assign employees in positions within the Sheriff's
C. To suspend, demote,
discharge or take other disciplinary action against non-probationary employees for just cause.
. . .
Article 7 Discipline and
Section 1 Just Cause: The County will not discipline
discharge any employee without just
cause. Warning notices shall be given when required by established approved County work
Copies of such warning notices shall be given to the employee, Personnel Director and the
Department Head. The warning notice must be issued within 30 days of said complaint.
verbal reprimand is given to an employee and it is noted for the record, the employee and
will be required to initial and date the incident.)
Section 2 Appeal: Discipline shall
consist of discharge, suspension, demotion and
reprimands. Any discipline must be by proper written notice to the employee which notice
include the specific rule and/or written County or departmental policy violated and facts
the alleged offense. Any such discipline may be appealed to the grievance procedure (Article
commencing at Step 2 of the procedure. If the discipline is overturned through
this procedure, the employee shall be
reinstated and any reprimand which formed the basis for
such discipline withdrawn. The parties may mutually agree at any time that any employee
reinstated with full, partial, or no compensation for lost time. All oral and written
be purged from the employee's file after one (1) year from the date of the offense.
. . .
Section 4 Statutory Option: For
grievances involving the review of a suspension, a
demotion, or a dismissal, the affected employee shall have the option of having the
reviewed under the grievance procedure set forth in this agreement or under the procedures
in ss. 59.26, Wis. Stats., et seq., but not both.
. . .
ARTICLE 15 VACATIONS
SECTION 1 ACCRUAL: All employees hired after
January 1, 1992, will accrue vacation on a per payroll basis. Vacation accrues based on the
of hours worked. . .Vacation benefits will be prorated for all employees on a per hour basis
time off without pay.
ARTICLE 16 SICK LEAVE
SECTION 1 ACCUMULATION, RATE, AND
PRORATION: All full time employees shall earn and accumulate sick leave on a
pay period basis.
. .For all employees, sick leave benefits are prorated on a per hour basis for all time off
. . .
INSURANCE SECTION 1 HEALTH INSURANCE: For all
health insurance premiums will be prorated on a per-hour basis. No payment of health
premiums shall be earned for time off without pay, unless otherwise specified in this
. . .
RELEVANT WORK RULES
4.62 WORK RULES. An
employee may be disciplined for just cause including, but
not limited to, the following infractions of work rules:
. . .
(7) Non-enforcement of County policies, regulations or any
other written regulations,
ordinances or laws.
. . .
(9) Non-compliance with County ordinances or written
departmental rules or procedures.
. . .
Poor work performance
. . .
(26) Insubordination including refusal to perform the work
. . .
RECOMMENDED. For consistency in administering discipline
County-wide, the following discipline is recommended for violation of the above rules:
(1) For violations of Section 4.62(12), (15), (17), (18), (20),
(21), (22), (23) and (28),
the following steps are recommended: (Am. #4).
(a) 1st offense Verbal reprimand.
(b) 2nd offense
(c) 3rd offense
1 day off without pay.
(d) 4th offense
5 days off without pay.
(e) 5th offense
(2) For violations of Section 4.62(8), (9), (16), (24), and
(25), the following steps are
(a) 1st offense
PERSONNEL POLICY 4.63 (2)(b)
(b) 2nd offense 1 day off without
(c) 3rd offense
5 days off without pay.
(d) 4th offense
POSITIONS OF THE PARTIES
The County contends that the discipline complied in all respects with the
Article 7 of the contract. In the view of the County, the 30 day requirement is applicable
written warnings or reprimands, and not to suspensions. Article 7 provides that when
notices are required by established approved County work rules, they must be issued within
of said complaint. County work rules have a scheduled set of recommendations for
discipline but no
requirement that a warning notice be issued for a particular violation. Thus, the 30 day
requirement is not applicable.
In the view of the County, the purpose of the 30 day provision is to require the
reduce to writing reprimands within 30 days, if they will be used in the chain of discipline.
In any event the discipline was issued within 30 days of when the County was placed
by the District Attorney that he would not be prosecuting the arrest. There was no
until the District Attorney made that determination.
Deputy Thornton violated work rules of which he had reasonable notice. The three
suspension was not excessive, arbitrary or capricious. The Department has a formal policy
arrest procedures. Deputies are trained in the elements of the offenses, and schooled to
departmental protocol. The County contends that in the arrest of D.A.R. one of the elements
offense, the vehicle, was missing. With respect to R.S. the County contends that no field
was ever conducted, no blood was drawn, and the required Notice of Intent to Revoke was
completed. The County reviews Thornton`s explanations for his actions, and takes issue with
explanations, and the judgement exercised. The County cites arbitral authority in support of
It is the view of the County that the Association has failed to establish that Thornton
singled out or treated in a discriminatory fashion. The County reviewed certain incidents
the Association, and distinguished them from the Thornton events. Critically, the County
dispute that in the past there has been inconsistent discipline due to different management
various sheriffs. However, argues the County, lax enforcement of discipline by previous
not mean that the current sheriff cannot discipline for current rules violations following a fair
Finally, the County argues that pro ration of benefits for disciplinary time off is
the clear and unambiguous terms of the contract.
The Association contends that the County lacks cause to discipline Thornton for
incidents cited in the disciplinary notice. The charges against D.A.R were not dismissed for
of probable cause, contrary to the disciplinary document. Rather, they were dismissed
District Attorney felt he could not win a conviction. Considering all of the facts, the
believes that Thornton had probable cause to arrest D.A.R.
The Association contends that Thornton exercised appropriate discretion in
appropriate level of field sobriety to subject Mr. S to, and whether to initiate a forced blood
following his stop and arrest. Thornton made a number of observations as to Mr. S.
also took into account the weather and Mr. S. claim that he had a bad back. According to
Association Thornton had sufficient evidence to establish that S. was operating while
Similarly, for safety reasons, Thornton determined not to attempt a forced blood draw after
became violent and combative. The Association contends that the possibility of injury was
S. continued to struggle, and been subjected to a forcible blood draw.
The Association characterizes the failure to prepare a Notice of Intent to Revoke as a
harmless administrative error.
The Association claims that the Department failed to discipline Thornton within 30
required by the contract. The Association believes the disciplinary action against Thornton is
barred by the 30 day clause.
The Association contends that should any discipline be sustained, no benefits should
rated. Past practice established that benefits have never been pro rated in disciplinary
Testimony from Association witnesses corroborated the existence of that practice.
witnesses testified that the pro ration clause was proposed to apply to employees who seek
Finally, the Association contends that a 15 day suspension is unnecessarily harsh, and
within the County`s own discipline recommendations for violation of work rules.
The record establishes that Deputy Thornton, a 10 year veteran of the Department,
been disciplined prior to the suspension leading to this proceeding. In that context, a 15
suspension appears extreme. The collective bargaining agreement allows for discipline, for
It is common for the just cause standard to include concepts of progressive discipline,
areas where there exists the possibility or likelihood that discipline administered in a
escalating manner will operate to warn the recipient that his behavior is inappropriate, and
correction of that behavior. In this dispute the County has subscribed to the concept of
discipline, including incorporating a recommended schedule of discipline in its work rules.
The two incidents leading to this discipline are outlined above. In the D.A.R. matter,
charged Mr. R. with O.W.I., without identifying a vehicle. The vehicle would appear to be
essential part of the charge of driving while intoxicated. Notwithstanding the confused and
conflicting stories told by Mr. R., it appears that Thornton overcharged. Relative to Mr. S.,
County questions Thornton`s judgement in failing to conduct a field sobriety test, failing to
blood sample, and failing to complete a Notice of Intent to Revoke. It appears that Thornton
have conducted a field sobriety test. There is nothing in the record to suggest that S. was so
physically compromised that putting him through the relatively modest physical movements
of a field
sobriety test would have risked undue harm. As to the blood sample, the record is silent as
much force an officer is to use to compel a forced draw in the face of physical resistance.
the County policy on O.W.I. Arrest Procedures addresses circumstances where an arrested
refuses to take a test, and provides the following:
IV. Cases where the arrested person refuses to take a
A. Take the person`s
D.L. and issue a "Chemical Test Refusal Driver`s License Receipt."
B. Fill out the Notice of
Intent to Revoke form completely.
C. Turn the arrested
person over to the jailer for booking into the jail
D. Do a complete
officer`s report and turn it in for further processing.
E. Mail copy of Notice
of Intent to Revoke form to State Patrol Chemical test Section
The policy is silent as to the level of force to be used under these circumstances. By
implication, it suggests that no force is to be used. All testimony was to the effect that the
was to exercise judgement under these circumstances.
As to the Notice of Intent to Revoke form, Thornton simply failed to fill out and file
The first arrest occurred on September 16. Thornton brought his concern over the
arrest to Lt.
Gutsch on September 25. The second arrest occurred on November 2. This incident was
communicated to Gutsch by a Sergeant, who described it as "..just plain poor police work"
date of this memo is unclear, but Gutsch testified that he reviewed this memo and the
with Thornton on November 7. Thornton was issued the disciplinary letter on December 13,
than 30 days after any of these events.
The parties agree that Article 7, Section 1 has a number of ambiguities related to this
They disagree as to how to apply the ambiguous language. The transition from the first
the second in Article 7, Sec. 1 is ambiguous. The initial area of contention is what is a
notice" for purposes of the 30 day notice? The warning notice reference would seem to
refer back to, the general reference to discipline and discharge. However, the County`s claim
language should be applied literally, that is, to oral and written warnings only, is equally
The reference to "when required by established approved County work rules." is
confusing. Work rules admitted into the record do not "require" warning notices. They
and allow for a number of forms of discipline. Read literally, as argued by the County, the
is rendered meaningless.
Finally, the 30 timeline is triggered by "said complaint". There is no previous
reference to a
complaint. The sentence appears to contemplate a citizen complaint. There does not appear
any such citizen complaint filed in this matter. The only real "complaint" in this proceeding
is that of
Management, which occurred before November 7.
Section 2 is titled Appeal, and is a more detailed treatment of discipline. The first
defines the term discipline, to include "..discharge, suspension, demotion and reprimands."
second sentence requires that "Any discipline must be by proper written notice to the
which notice shall include the specific rule and/or written County or departmental policy
facts relating to the alleged offense." The paragraph goes on to permit appeal of any such
to the grievance procedure. The grievance procedure has a series of steps, each of which is
accompanied by a time limit on the filing and handling of grievances. One obvious purpose
requirement that discipline be reduced to writing is to establish the date of the event for
the grievance procedure timelines.
Reading Sections 1 and 2 together brings some clarity to Section 1. If the Section 1
to "Warning notices" is interpreted to refer to the "written notice" contained in Section 2,
7 treats the term "notice" consistently. The term 'Warning notice" is not taken from the
County work rules do not use the term "warning' or the term "notice". Section 2 does use
"notice" and does so in the context of requiring "notice" for "any discipline". The
requirement that discipline be accompanied by written notice derives from Section 2. The
requirement set forth in Section 2 also directs that County or departmental rules be
referenced in the
"proper written notice". County work rules set forth behavior deemed inappropriate and a
recommended discipline schedule.
I believe that it is the intent of Section 1 to require written warning to accompany any
of discipline issued, to require that the notice issue within 30 days of the "complaint", and to
that applicable work rules or policies be cited. This construction harmonizes Section 1 and
2, along with the format of the work rules. It does not result in any sentence being reduced
nullity. It is consistent with the format of the notice issued. As a practical matter, if it is
to investigate and make a decision as to whether a written warning should issue it is every bit
important that a decision be made as to whether or not to issue a three week suspension.
The County contends that the 30 days should not begin to run until the District
declined to prosecute. I disagree. The contract begins the counting period with "said
The D.A. did not complain about Thornton`s work. The only complaint was that of
The parties have asked if there was cause for discipline arising out of either the
D.A.R. or R.S.
incidents. In both instances some discipline was appropriate. Under the county work rules a
reprimand is recommended for a first offense. Thornton is a first offender. Nothing in this
suggests a basis for a more severe sanction.
The grievance is sustained.
The County is directed to refund the wages, benefits and any other losses incurred by
Thornton, and to expunge his record of all reference to this matter. The County is not
issue a reduced form of discipline in this matter due to the expiration of the 30 days.
Dated at Madison, Wisconsin, this 29th day of January, 2002.