BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SAWYER COUNTY LAW ENFORCEMENT
LOCAL 261, WISCONSIN PROFESSIONAL POLICE
ENFORCEMENT EMPLOYEE RELATIONS
Mr. Paul M. Moldenhauer, Paul M.
Moldenhauer, S.C., Attorney at Law, 1517 Belknap Street,
Superior, Wisconsin 54880, appearing on behalf of Sawyer County Law Enforcement
Local 261, Wisconsin Professional Police Association, Law Enforcement Employee Relations
Division, referred to below as the Union, or as the Association.
Ms. Kathryn J. Prenn, Weld, Riley, Prenn &
Ricci, S.C., Attorneys at Law, 3624 Oakwood Hills
Parkway, P.O. Box 1030, Eau Claire, Wisconsin 54702-1030, appearing on behalf of Sawyer
referred to below as the County or as the Employer.
The Union and the County are parties to a collective bargaining agreement which was
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The Union and the County jointly requested the Wisconsin Employment
Commission to appoint an Arbitrator to resolve a grievance filed on behalf of Don Miller,
referred to below as the Grievant. The Commission appointed Richard B. McLaughlin, a
of its staff. Hearing was held on April 29, 2003, in Hayward, Wisconsin. The hearing was
transcribed. The parties filed briefs and reply briefs by July 28, 2003.
The parties stipulated the following issue:
Does the County have just cause to terminate Deputy Don
The County possesses the sole right to operate the Law
Enforcement Department and all
management rights repose in it, subject to the provisions of this contract and applicable laws.
rights include the following:
. . .
L. To suspend, demote, discharge or take other
disciplinary action against the employees for just
The reasonableness of County action taken
pursuant to this Article is subject to the grievance
. . .
ARTICLE 9 DISCIPLINARY
A. Purpose. The following disciplinary
procedure is intended as a legitimate management device
to inform employees of work habits, etc., which are not consistent with the aims of the
Employer's public function, and thereby to correct those deficiencies.
Action. An employee may be demoted, suspended or discharged or otherwise
disciplined for just cause. The sequence of disciplinary action shall be oral reprimands,
written reprimand, suspension, demotion, and discharge. A written reprimand or other
disciplinary action sustained in the grievance procedure or not contested shall be considered
a valid warning. Any disciplinary action shall be grievable. For grievances involving the
review of a suspension, a demotion, or a dismissal, the affected employee shall have the
option of having the disciplinary action reviewed under the grievance procedure set forth in
this agreement or under the procedures set forth in Sec. 59.26, Wis. Stat., but not both.
C. Immediate Suspension
or Suspension Pending Discharge. The above sequence of disciplinary
action shall not apply in cases which are cause for immediate suspension or suspension
pending discharge. Theft of personal or public property, drinking on the job, being drunk on
the job or other incidents of similar gravity are hereby defined as cause for immediate
suspension pending discharge.
The grievance challenges charges filed by County Sheriff Donald W. Sheehan against
Grievant. Sheehan stated the charges in a letter dated November 8, 2002 (references to dates
2002, unless otherwise specified), which reads thus:
Pursuant to Section 59.28(8)(b) (sic), Wis. Stat., this letter shall
serve as formal complaint
against (the Grievant). The Specific charges are as follows:
1. On September 26, 2002, (the Grievant) filed and
(sic) Employee Injury Report Form and an
Employer's First Report of Injury or Disease form for an injury which allegedly occurred in
the afternoon of December 31, 2001.
2. The Department's
investigation has revealed that the alleged injury could not have occurred
on that date and time as represented by (the Grievant).
3. Subsequent to the
submission of the initial forms, (the Grievant) submitted a second set of
Employee Injury Report and Employer's First Report of Injury or Disease forms on October
28, 2002, again stating that the injury occurred in the afternoon of December 31, 2001, but
approximately on hour earlier than stated on the initial set of forms submitted by him.
the Department's investigation has revealed that the injury, if it occurred, could not have
occurred on that date at that time.
4. Through the submission of
these forms, (the Grievant) has failed to comply with departmental
policy regarding the timeline for reporting work-related injuries, i.e. within 72 hours after
injury occurs. The Department's investigation revealed that the injury, if it occurred, did not
occur as represented by (the Grievant) on official document prepared by him and submitted
by him to the County and that he misrepresented the circumstances of his injury and falsified
the report forms filed with the County regarding the circumstances of his injury.
By such conduct, (the Grievant) violated the following work rules
A. Work Rule: All work related injuries must be
reported within 72 hours.
B. Sawyer County's
Personnel/Administrative Policies provide:
1. Section 2(b): All employees
shall comply with departmental work rules. (p.25).
2(d): Employees shall not make false or malicious statement, either oral or
written, concerning any employee, the County or its policies. (p.25).
5(a): Employees shall not falsify, modify or make any other unauthorized
alterations of any County record.
Based on the foregoing, I am recommending to the Grievance
Committee, comprised of the
members of the Public Safety Committee and the Personnel Committee, that (the Grievant)
terminated. I am also hereby placing (the Grievant) on suspension beginning November 8,
pay, pending final action by the Grievance Committee in this matter.
The County's Personnel/Administrative Policies are referred to
below as the Policy. There is no
dispute the Grievant received a copy of the Policy. Section 2 of the Policy is entitled
"Insubordination". Section 5 is entitled "Records". The
Association requested a hearing on the
charges. The Grievant ultimately waived his right to a hearing under Sec. 59.26, Stats., and
that the matter proceed directly to arbitration. The parties agreed to the arbitration
submitted a request for arbitration by early December.
The Grievant filled out the September 26 form referred to in the November 8 letter.
section of the form entitled "Employer's First Report Of Injury Or Disease" (First Report)
a form entry for "Injury Date" that the Grievant completed with "12-31-01", and a form
"Time of Injury" that the Grievant completed with "2 PM". He entered no response to the
"Date Employer Notified". He listed "Washing Squad Car" in response to the form entry
Description"; listed "Slipped" in response to the form entry for What happened to cause this
or illness? (Describe how the injury occurred)"; and "Left Shoulder Partial Dislocate" in
to the form entry for "What was the injury or illness? (State the part of the body affected
it was affected)". He also completed the section of the September 26 form entitled
Report Form." He responded, "Sheriff's Dept Garage" to the form entry "Where Did This
Occure (sic)"; "Slipped While Washing Squad + Popped Left Shoulder" to the form entry
The Accident"; "Left Shoulder Partial Dislocate" to the form entry "Please Describe Your
"Slippery Floor" in response to the form entry "Causes"; and "Use Car Wash" in response to
The Grievant filled out the October 28 form referred to in the November 8 letter.
responses are identical to those set forth in the preceding paragraph from the September 26
with two exceptions on the First Report section of the form. The Grievant stated "Approx:
in response to the "Time of Injury" form entry, and "10-28-02" in response to the "Date
Notified" form entry.
The date of injury entry on the September and October forms refers to an incident
brought the Grievant to the emergency room of the Hayward Area Memorial Hospital. At
2:30 p.m., within an hour of an investigatory interview at the Sheriff's Department, the
checked himself into the emergency room. Marsha Zeier, a Registered Nurse, first
Her notes state the "Chief Complaint" as "Lt shoulder popped out, while working 1300
Robert Swenson, M.D., was the treating physician. His notes state the Grievant fell "in
slipped while washing squad card & felt it pop out & pain -- faint-like (therefore)
to ER." Swenson
also noted a "Dislocated Shoulder" that had "reduced spontaneously" and was traceable to a
dislocation. Swenson immobilized the shoulder, prescribed Vicodin for the pain, directed the
Grievant not to work, and discharged him to return home at roughly 3:15 p.m.
The 1996 dislocation occurred during the Grievant's response to a domestic
May 2. During the altercation, the Grievant was thrown against a wall, dislocating his left
Later that day, with the assistance of Julie Hofer, the County's Deputy County
Coordinator, he filled out a First Report.
The County did not contest that the 1996 dislocation was work related, but
over time the
extent of the Grievant's claim became a disputed point between the Grievant and the
County's then-incumbent insurer, Wausau General Insurance Company (Wausau). Attorney
Melissa A. Kirschner,
then employed by Liberty Mutual Insurance Company, represented Wausau, and Attorney
Erspamer represented the Grievant. Ultimately, the Grievant underwent an Independent
Evaluation (IME) with Stephen E. Barron, M.D., to assess his permanent partial disability.
issued a report dated December 9, 1999. The history section of the report noted that the
had returned to work in June of 1996, "with no limitations" and worked without problems
through October of 1996. In November of 1996, he returned to his doctor, Scott Warren,
complaining that the shoulder had come out of place while he stretched it. Between then and
November of 1998, he experienced numerous similar instances of "subluxation with
reduction" of the left shoulder, i.e. a partial dislocation that he could reset by himself. None
at work. The Grievant and Warren began, during this period, to consider surgery. Warren
Grievant, in July of 1999, "at 8 percent permanent partial disability."
Barron's IME summarized his view of the Grievant's injury thus:
It is my impression that (the Grievant) has
recurrent subluxation of his left shoulder. . . . (T)here
is evidence of tear of the anterior glenoid labrum. He also has a positive apprehension test
instability of his left shoulder.
Barron concluded that the Grievant's "healing period ended
regarding any industrial injury
aggravation . . . three months following the incident", and that "he has sustained a 2 percent
permanent partial disability to the left upper extremity."
In May of 2001 the County switched Worker's Compensation insurers from Wausau
The switch impacted the payment for the Grievant's December 31, 2001, emergency room
posed potential issues regarding funding surgery to repair the shoulder. If the injury was
and traceable to the 1996 shoulder separation, then treatment bills would be Wausau's
to pay. If a distinguishable work-related injury, then the bills would be Aegis'
consequences of this dispute ultimately prompted the filing of the September and October
Both Wausau and Aegis sought to have injury claims filed within 72 hours of an
The County, in May of 2001, posted in the Squad Room, the Communications Center and
Office, the following notice:
REMINDER TO ALL EMPLOYEES
IF YOU ARE INURED (sic) ON THE JOB YOU MUST TELL
A SUPERVISOR AS SOON
AS THE INJURY OCCURS. LAST YEAR, THE SHERIFF'S DEPMARTMENT FAILED
REPORT 3 INJURIES WITHIN THE 72 HOUR TIME LIMIT AND THAT HAD A BIG
ON THE WORK COMP RATES FOR THE COUNTY.
EVEN IF YOU DO NOT SEEK MEDICAL
ATTENTION RIGHT AWAY OR THERE IS NO
LOSS OF WORK TIME, YOU NEED TO REPORT THE INJURY AND FILL OUT THE
APPROPRIATE FORMS SO WE CAN REPORT WITHIN THE 72 HOUR TIME LIMIT.
IF YOU HAVE ANY QUESTIONS,
PLEASE ASK ROSE.
"Rose" is Rose Lillyroot, then Secretary to the Sheriff. The County had posted notices
need to report within 72 hours since at least June of 1997.
The background set forth to this point is essentially undisputed. The balance of the
background is best set forth as an overview of witness testimony.
Swenson treated the Grievant prior to the December, 2001 incident. The first
the 1996 separation. He saw the Grievant about one and one-half hours after the incident,
Grievant had put it back in place. He also treated the Grievant when, in the line of duty, he
almost struck by a car driven by a person seeking to avoid arrest.
Swenson was "100% certain" that the 2001 injury was a recurrence of the shoulder
dating from 1996. Nevertheless, he prescribed Vicodin for the injury, because he felt the
demanded that serious a pain-killer. He viewed the Grievant as "very much a man" and as
they come" in light of his prior observations of the Grievant's pain threshold. This, coupled
direct observation of the Grievant's response to the December 31, 2001 examination and the
Grievant's elevated blood pressure, convinced Swenson that the Grievant was experiencing
pain. That the Grievant reported feeling faint at the point of injury convinced him that a
pain medication was needed, even at the risk of its potentially addictive effect. He did not
Grievant lied to him about the injury, and knew of no reason to doubt the truth of the
account of the injury.
Kirschner took the position the December 31, 2001 injury was a new injury,
Grievant's fall while washing the squad. She and Erspamer discussed dating the injury, but
reach no agreement. She informed Erspamer that Wausau wanted to send an investigator to
determine the facts, and understood Erspamer's position to be that he would neither commit
specific date for the injury nor assist her in Wausau's attempt to determine one. As she
it, Erspamer left it to Wausau alone to find proof that the December 31, 2001 injury
was a new injury.
That he had better access to the Grievant's condition made it troubling to her that he would
representation of fact regarding the December 31, 2001 injury. She felt that the Grievant
filed a new First Report.
The Grievant filed a Hearing Application on January 8, 2002. The form listed
the "Date of Injury", and "8% shoulder" as the "Permanent Partial Disability". The
responded to the "Describe the nature of the disability" entry thus: "Employee severely
arm/shoulder during an arrest." Kirschner's answer to the application did not challenge that
accident causing the injury was work related, but did challenge the extent of permanent
based on Barron's December 9, 1999 IME.
Wausau sought another IME from Barron, who examined the Grievant on October
issued a "Comprehensive Evaluation", dated October 24, that reads thus:
. . .
HISTORY AND REVIEW OF
(The Grievant) . . . injured his left shoulder
on May 24, 1996, while . . . involved in a domestic
arrest. . . . He told me subsequent to his first injury, his shoulder has subluxed three to four
His last subluxation occurred on December 31, 2001, when he slipped in his garage while
his squad car. He followed up with Dr. Sauer. Surgery was discussed. He sought
Dr. O'Connor in June of 2002, and he felt that surgery was indicated.
(The Grievant) was seen at Hayward Area Memorial Hospital
Emergency Room, on December
31, 2001. "His left shoulder popped out while working at 1300 today."
In a letter of January 15, 2002, Dr. Sauer
indicated he thought his initial assessment of 8 percent
permanency reflects the ongoing recurrent nature of his shoulder subluxation. . . . With
regard to the
question of whether the recurrent dislocation stemmed from the original May 24, 1996,
would answer in the affirmative.
. . .
(The Grievant) saw . . . an orthopedic surgeon on June 10, 2002.
He discussed surgery with him.
He agreed with Dr. Sauer that surgical intervention would likely give him the best
improve in terms of stability.
. . .
It is my impression that (the Grievant) has
recurrent subluxation of his left shoulder.
In my opinion, his current left shoulder
diagnosis and his current need for surgery is directly
related to the May 24, 1996 work incident. . . . In my
opinion, the injury of May 24, 1996, from
which he initially dislocated his shoulder, caused the
tear of the glenoid labrum, and as a result, his current need for surgery is directly related to
24, 1996, work incident.
. . .
In my opinion, his current left shoulder diagnosis and his current
need for surgery is not the result
of a traumatic injury that precipitated, aggravated or accelerated a preexisting condition
. . .
In my opinion, the proposed surgery is reasonable and necessary
to cure and relieve the effects
of (the Grievant's) May 24, 1996, work injury. In my opinion, it is not the result of some
or exposure. . . .
After receiving this report Wausau agreed to pay for the Grievant's shoulder surgery.
Kirschner stated that a First Report is expected to be filed shortly after an injury, but
reoccurrence of an injury does not necessarily demand the filing of a First Report. First
be amended after the initial filing.
Lillyroot has been a County employee since 1995, and currently serves as a
While Secretary to the Sheriff, she was responsible for supplying Worker's Compensation
employees, and then returning the completed forms to Hofer.
Lillyroot was a Sheriffs' Secretary on December 31, 2001. Early in the afternoon,
Grievant reported to the Sheriff's Department in a squad car. After a meeting with the
Grievant asked Lillyroot for a ride to his home, which was roughly five miles away. They
Department at roughly 1:45 p.m., and she returned to the Department a little after
2:00 p.m. While
on the ride home, the Grievant did not complain of pain or call any attention to his shoulder.
in uniform, and Lillyroot did not recall observing that it was wet. The Grievant did not
falling and did not mention washing his squad. He did, however, mention that he hoped he
lost his "fucking job" or his "fucking stripes." She perceived him to be upset, but not
Lillyroot first learned of the Grievant's December 31, 2001 emergency room visit
Hofer or the Hospital called her regarding payment for the bill. She thought this happened
September. She contacted Aegis, who informed her there was no record of injury
for that date. She then contacted the Grievant, and supplied him a packet of blank
Compensation forms, instructing him to fill them out. He said he would speak to his
returned them on or about September 26. She showed the forms to Rick Chambers, the
Deputy, and noted that she did not believe that the time of injury could be correct.
Lillyroot typically handled twenty such forms per year, but this is the first that she
encountered that appeared suspicious. She did not know if the claim was fraudulent, and did
out the possibility it reflected a mistake, but knew he was not washing a squad car at that
time of day
on December 31, 2001. She acknowledged the Grievant's uniform could have been wet, and
that Sheehan or Chambers were out to get the Grievant.
Hofer coordinates the processing of all County Worker's Compensation claims. She
estimated that the County handles thirty-five to forty claims annually. She noted that while
was the County's insurer, it paid a dividend to promote prompt filing of claims. Under that
"prompt" meant filed within 72 hours of the injury. The policy, including the 72 hour
was posted in all County departments. She estimated the County had perhaps one untimely
She testified that the Grievant called her in early January, perhaps on January 2, to
injury. She referred him to Lillyroot. Perhaps as early as February, the Hospital began to
Hofer concerning payment for the Grievant's December 31, 2001 emergency room visit. By
8, Wausau had mailed her a form indicating that it could not process the Hospital bill due to
"incorrect or insufficient information." Hofer responded on February 15 by mailing
Wausau the 1996
First Report. This did not stop the Hospital from seeking payment through the County.
the Hospital tried to have the County's health insurer pay the claim. Wausau responded to
inquiries by saying it had not decided whether to pay. Aegis did the same. Hofer and
discussed the matter on and off, and ultimately Lillyroot gave the Grievant blank forms to
First Report. Hofer cannot recall asking the Grievant to file the First Report. Lillyroot
that the Grievant declined, but said he would refer it to his attorney.
The Grievant filed the September 26 form with Hofer. Later, he asked for another
saying that he had to change the September 26 form. He then filed the October 28 form.
supplied the form to Chambers, who instructed Hofer not to file it with the insurer. He did
her a reason. This was the first time she handled a Worker's Compensation form that the
not promptly file with the insurer.
Hofer testified that Aegis did not increase the County's premium and that she had no
to believe the Grievant's September and October forms were fraudulent.
Chambers served as Chief Deputy from May 20, 1993 until his retirement on
2003. The County hired him as a Deputy in 1977. He served as a Patrol Deputy and as a
Sergeant prior to becoming Chief Deputy. He was the Grievant's immediate supervisor.
As of December 31, 2001, the Grievant was a Sergeant and his shift on that day
4:00 p.m. Sheehan summoned him to a meeting. At 12:50 p.m., the Grievant called in a
indicating that he was on duty. He pulled his squad into garage stall 3 at 1:00 p.m. Routing
Grievant to that door required that he check in his weapons before entering the jail area. In
a prior confrontation with the Grievant, the Sheriff determined it would be best that he not
during the meeting. Sheehan and Chambers perceived the Grievant to have problems with
management. The Grievant reported to Chambers' office, stood in the doorway and asked
the deal with my squad?" Chambers told him the Sheriff wanted to meet with him, but was
meeting with the Union representative. The Grievant then went to the lobby to wait.
testified the Grievant did not leave the lobby, although Chambers walked through the lobby
once during this time period.
At 1:29 p.m., the meeting began. The meeting was investigatory. Prior to any
Chambers gave the Grievant a formal "Internal Investigation Warning", and informed the
of his right to Union representation. The Grievant requested and received Union
purpose of the meeting was to determine if the Grievant had, while on duty, driven to a
officer's home to inform him of a then pending investigation of the officer's conduct
intradepartmental theft. Chambers stated that the Grievant operated a tape recorder during
meeting. He neither complained of pain, nor showed any observable sign of pain prior to or
the meeting. The meeting ended at 1:45 p.m., with the Grievant being placed on
Leave pending the completion of the investigation. Chambers took the Grievant's keys to
property. Sheehan asked the Grievant whether he had any personal property in the squad.
Grievant responded uncertainly, and Sheehan directed Chambers to inventory the squad's
Chambers walked to the garage, removed the Grievant's personal property and placed
a cardboard box that he ultimately took to the Grievant's office. Chambers testified that the
was filthy inside and out. The floor of the garage was dry. He reported to Sheehan that the
"absolutely filthy" and had fast food garbage strewn throughout it.
Sometime in late September, Lillyroot showed Chambers the September 26 form.
recognized the date of injury as the date of the investigatory meeting, and reviewed his notes
meeting. He then phoned the County's labor counsel. Sheehan was, at that time, on medical
due to injury from a car accident. Chambers phoned Sheehan, who directed him to
Chambers met with the Grievant, two Union representatives and Lieutenant Barthel
October 28. The meeting was investigatory, and turned on County concerns with the
veracity of the
September 26 forms and with sick leave abuse. The Grievant taped the meeting. Chambers
the Grievant with the September 26 forms and with a detailed account of his reasons for
stated time of injury could not be correct. The Grievant responded that Erspamer had
not to discuss the matter, which was being litigated. Chambers then detailed the County's
that his work attendance record was deteriorating, and that the Grievant would claim sick
denied a day off, causing the County and unit members problems in filling the vacant shift.
notes state, "(the Grievant) stated these days has (sic) to do with my shoulder, and I can't
by my attorney's advice." Chambers responded that the County had no documentation and
of his shoulder difficulties. The Grievant declined to discuss the shoulder problems.
The meeting ended with Chambers stating that he would report the matter, including
Grievant's responses, to the County's labor counsel and Sheehan.
Sometime after the close of the meeting, Miller phoned Chambers. Chambers' notes
document the discussion thus:
I made contact with my attorney and told him that you had
documentation showing I was in
a meeting at the time I indicated my injury happened so I guess it couldn't have happened at
that time. My attorney said to just get another set of papers and just write the correct time
and re submit them.
Chambers responded that this was between the Grievant and his attorney.
The Grievant then filed the October 28 forms. Chambers did not believe the asserted
injury. After discussing the matter with Sheehan and the County's labor counsel, Chambers
recommended termination, since the injury could not have happened at that time, and as a
officer, the Grievant should be "held to a little bit higher standard than the average person."
was, to Chambers, so egregious an offense that recourse to progressive discipline was
The circumstances were unprecedented in his experience.
He specifically denied colluding with Sheehan to terminate the Grievant. In his view,
Grievant brought the termination on himself. He declined to approve mailing the forms to
because he was unwilling to sign the forms. He could not recall the condition of garage stall
3 on any
date other than December 31, 2001. That was the only date that he had to check a squad,
out, for a deputy's personal property. He described it as an "unusual and unpleasant"
He acknowledged that the County has not filed criminal charges against the Grievant.
Donald W. Sheehan
Sheehan served the County as Sheriff for twenty years, retiring in January of 2003.
seriously injured in a car accident in September. Sheehan directed Chambers to inspect the
squad on December 31, 2001. After hearing Chambers' report of its condition, Sheehan
it for himself. The car was not clean, and showed no sign that it had been recently washed.
point during the December 31, 2001 meeting did the Grievant complain of an injury or show
evidence of pain.
Sheehan stated that he had the "final say" on the termination decision. He relied on
Chambers' investigation. He viewed the September and October forms as a lie, and a
breach of the trust and honesty essential to the performance of law enforcement, particularly
sergeant. Termination was, in his view, appropriate without regard to the Grievant's service
He would have fired a deputy with an unblemished record, and the Grievant's was not
He never colluded with Chambers and neither requested the Grievant to file the forms nor
him on how to complete them.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The County's Initial Brief
After a review of the evidence, the County notes that it "has the burden of
the grievant engaged in the conduct which served as the basis for the recommendation of
termination." Under arbitral precedent, however, this burden "is something less than beyond
reasonable doubt" and does not require establishing "criminal intent" or the existence of
The evidence establishes that "the grievant failed to comply with departmental policy
regarding" the 72 hour "timeline for reporting work-related injuries." The evidence
existence and the general publication of this timeline. There is "no evidence in
the record that the
grievant was not aware" of the requirement, and in fact the "evidence is to the contrary."
this, the County has established that the Grievant "submitted two fraudulent workers'
reports." The Grievant's September 26 claim alleges the injury occurred at 2:00 p.m.
when confronted on October 28 regarding the veracity of this claim, the Grievant responded
moving the date of the alleged injury to 1:00 p.m. on December 31. Witness testimony
that this claim is untenable, since it fully accounts for the Grievant's activities from slightly
1:00 p.m. until sometime after 2:00 p.m. The "brevity of his on-duty time on
December 31, 2001,
precludes any possibility that" the injury occurred as the Grievant alleges. Swenson's
cannot rebut this, since it is based "solely on what the grievant told him" and on Swenson's
to help him.
Other explanations beyond that offered by the Grievant to Swenson must account for
injury. There is no reliable evidence that he injured the shoulder while in work status. He
fear for his job to Lillyroot, and this means he "may well have faked an injury in an effort to
what he believed was his immediate termination." Another "possible explanation . . . is that
his shoulder after he was dropped off at home." Given the Grievant's history of managing
is "entirely possible that upon being dropped off at home that the grievant, in a fit of anger,
his shoulder." Whatever may have occurred, it is evident he failed to "follow the 72 hour
that he submitted two fraudulent workers' compensation claims."
The evidence warrants termination for this misconduct. Arbitral precedent demands
employer's discretion over the appropriate sanction for misconduct be respected absent clear
of an abuse of that discretion. Even if the Grievant had "an otherwise stellar work record"
termination was appropriate. Arbitral precedent establishes that falsification of employment
is sufficiently egregious to warrant summary termination, without regard to an employee's
quality of service. Here, however, the Grievant did not have "a stellar work record" and
acknowledged the misconduct. The misconduct at issue impacts the County's workers'
compensation premiums and undercuts the integrity of its law enforcement efforts. The
rank of sergeant underscores the significance of his misconduct as a departmental matter.
The County concludes by requesting that "the Arbitrator uphold the termination."
The Association's Initial Brief
The Association states the issue for decision thus:
Whether the Sawyer County Sheriff's Department has
demonstrated just cause to terminate
Deputy Don Miller based upon the allegations of the complaint pursuant to Wis. Stat.
After an extensive review of the record, the Association contends
that "no Wisconsin deputy sheriff
may be discharged based on charges filed by the Sheriff unless it is determined that there is
as described in the statute, to sustain the charges." Just cause is defined as a matter of law
contract by the Daugherty standards, noted in Enterprise Wire Co., 46 LA 359 (Daugherty,
The 72 hour rule and Section 2(b) of the Personnel Policies fail to support the
The December 31, 2001 injury was one of a series of "subluxations over the years" that trace
to the injury of May 25, 1996. This is a recurrence, not an original injury, and thus the rule
Policy have no bearing on it. Even if it could be concluded that they did, Chambers' order
the submission of the Grievant's claims undercuts
any County disciplinary interest: "what good does it do to require a form when the
not submit it anyway?"
The evidence confirms this. Hofer submitted the claim under the original claim
traceable to the 1996 injury. The County suffered no loss or penalty traceable to the
untimely claim. It follows from this that the Grievant could not "reasonably be expected to
knowledge of the probable consequences of his allegedly untimely filing of a Report of First
Nor can it be said that Sheehan or Chambers made a reasonable effort to investigate a
the 72 hour rule. Sheehan relied on Chambers, and the evidence establishes that Chambers
neither fair nor objective toward the Grievant.
The County's failure to submit the claim forms establishes an unfair and
application of the 72 hour rule. That the County required the Grievant to submit a form it
to present to an insurer "is undeniable discrimination and lack of fair treatment". Hofer's
establishes that the County uniformly files First Reports.
Nor does Section 2(d) of the Policy call for the Grievant's termination, since nothing
County's case demonstrates to the degree necessary to show just cause for termination that
Grievant) made any false statement." Swenson's testimony establishes the existence of real
traceable to a real shoulder injury suffered by a man not known to complain. The Grievant
reported the injury in January, only to be required to re-submit a claim roughly ten months
County forced the Grievant to submit an amended claim, then forced him to amend it again.
case, the Grievant acted in good faith. "Mistaken time entries . . . do not rise to the level of
a false statement."
The evidence establishes that the County's investigation "of the car washing incident
belief". The County did not contact Swenson and failed to make any serious inquiry for
beyond Chambers' recall. His recall, however, is "self serving" and "literally begs the
is really lying here?" Chambers' vivid recall, in October, of events from December of 2001,
be reconciled to his inability to recall any other events from that period. A review of the
reports of these incidents establishes a "far more credible" account than Sheehan's or
The evidence makes it fair to presume that the Grievant could not have known that
October amendment to the injury report could result in his termination. Chambers and
the Grievant in an untenable situation, for if he stood by the September report he would be
of lying, yet by honestly amending the report he stands accused of an improper amendment
The County's insurer's counsel acknowledged that "it is not illegal to amend" First
Sheehan and Chambers failed to consult her. Viewed as a whole, the evidence demonstrates
neither fairly nor objectively investigated the Grievant's alleged misconduct. It follows that
County has failed to prove the charges against the Grievant. From this it follows that the
"should be re-instated with back-pay."
The County's Reply Brief
The County contends that the Union's brief "is laced with hyperbole, relies on
information and entirely misses the point." The point is that the Grievant failed to report an
within 72 hours and then filed "not one, but two fraudulent reports of injury." Beyond this,
Association ignores that the Grievant, in choosing arbitration, specifically rejected the
Sec. 59.26, Stats.
The "remarkable" feature of the grievance is "that the grievant chose not to offer any
testimony." This is consistent, for "the grievant has steadfastly refused to answer questions
County regarding the events between 1:00 p.m. and 2:00 p.m. on December 31, 2001."
the Grievant exaggerates the significance of Swenson's testimony, which establishes only that
Grievant "went to the emergency room". The testimony "sheds no light on how the alleged
happened, if it happened at all." Swenson's testimony that the Grievant was in pain on
only underscores the mystery surrounding why he showed no sign of it while on duty that
County "believes that the Arbitrator is entitled to draw negative inferences from the fact that
grievant made no such statements on December 31, 2001, that he refused to answer questions
the alleged injury when asked on October 28, 2002, and that he chose not to offer any
the arbitration hearing."
The Union's use of medical records, Kirschner's testimony and County demands to
the Work Injury Report is misplaced, but cannot obscure "the point that when the forms are
they are to be filled out truthfully." Nor can the assertion that an insurer may not require
of serial forms for the same injury obscure that the Policy demands a report of each injury
hours. The evidence establishes that the Grievant chose not to. That Chambers chose not to
the forms to the insurer establishes no more than Chambers' view that the forms were
His recall of the events of December 31, 2001 is not remarkable given the fact that the
prompted by disciplinary matters that led to the Grievant's loss of sergeant status. Sheehan
investigate the matter because he was on medical leave. The most remarkable fact of the
the Grievant's choice not to testify, "perhaps because he did not want to commit perjury . . .
(p)erhaps . . . because he did not want to be confronted with his prior disciplinary record."
The Union's case rests "on irrelevant information and hollow attacks" while the
rests on direct testimony. The weight of the evidence "necessarily tips toward support of the
recommendation for termination."
The Association's Reply Brief
The Association argues that the "most important question behind the main issue of . .
cause' . . . is that of who bears the burden of proof." The answer "falls squarely and
the employer." The appropriate burden is "such clear and convincing evidence as would
termination", but the County's proof will not meet even a "preponderance of the evidence"
Only "unsupported conclusions" support the County's arguments. The County's
effect puts the Grievant in a "lose/lose/lose/lose" situation by demanding a First Report for a
reoccurrence of an already reported injury, then by demanding the report within 72 hours,
demanding two subsequent filings, the last of which reflects emergency room records. The
decisional process does not manifest an investigation, but a hunt "for any excuse (whether
or not) to terminate him." There is no support for this attack, which constitutes "clear
More specifically, the County's assertion that it has accounted for all of the
Grievant's on-duty time on December 31, 2001, ignores "an entire ten minute window of
opportunity for 1:00 p.m.
to 1:10 p.m. approximately during which (the Grievant) could have tried to wash his squad
That the Grievant did not complain of an injury to Sheehan or Chambers on that date does no
than confirm Swenson's view of his pain threshold. That Chambers thought the squad was
inside and out" does no more than establish why the Grievant would have chosen to wash it.
amount of time necessary to aggravate the shoulder injury is miniscule, and the evidence
reason or gain to account for the Grievant's choice to report the injury to the emergency
The County exaggerates the testimony of its witnesses to conclude the Grievant's
dry. At best, the testimony establishes it was not wet. Similarly, the County misstates the
concerning the Grievant's workers' compensation attorney. At most, the comments
attributed to him
show only that he underscored the view of others that the December 31, 2001 injury was
to the original 1996 injury. The County's acceptance of Swenson's testimony establishes that
Grievant "was not a malingerer and . . . not the type to lie about his injuries". Swenson's
regarding the pain the Grievant suffered on December 31, 2001 "is enough to sink the
alleged case." That the injury would have been traceable to the 1996 injury establishes that
Grievant had no incentive to lie to Swenson. Swenson's testimony compares favorably to the
"equivocal and self-refuting" testimony of Chambers and Sheehan.
The County's arguments regarding Sec. 59.26, Stats., are misplaced. The statute "is
very least a clear and strong advisory as to what constitutes 'just cause' for the termination".
examination of the arbitral precedent cited by the County has no factual bearing on this
The record, viewed as a whole, shows no violation of "any rules whatsoever" and demands
Grievant "be reinstated with back-pay."
The issue is stipulated, and questions whether the County had just cause to terminate
Grievant. The parties also stipulated that if I found no just cause then I should retain
address the issue of remedy. The Association, in its brief, altered the statement of the issue
hearing to highlight the application of Sec. 59.26(8)5m, Stats. The County's reply brief
the Grievant's selection of arbitration waived the standards of Sec. 59.26(8)5m, Stats.
This dispute is arguably fundamental. It may question the agreement to arbitrate as
the stipulation of the issue. Further complicating the point are the standards I have applied
arbitration cases. Subsections a through g of Sec. 59.26(8)5m, Stats., which set out
defining "just cause, as described in this subdivision", draw heavily from the "Daugherty
established through a series of arbitration cases including Enterprise Wire Co., 46 LA 359
(Daugherty, 1966). I typically apply the Daugherty standards only if the parties agree to
Sheboygan County, MA-11905 (McLaughlin, 12/02, and Winnebago County, MA-11252
(McLlaughlin, 06/01), and do not interpret statute unless the labor agreement demands it or
parties mutually request it; CITY OF Menasha, (MA-7361, MA-7362 & MA-7363,
panel chair, 4/97).
The dispute is, however, more academic than fundamental. The agreement does not
the application of external law. Sections 2L, 9B and 9C set out the just cause requirement.
9B establishes the "procedures set forth in Sec. 59.26, Wis. Stat.", as "the option" of a
employee, and specifies the option includes arbitration or the statutory procedures, "but not
Thus, the agreement does not require the interpretation of Sec. 59.26, Stats. Nor have the
agreed to it. The County opposes the application of the statutory standards. The Association
not request a statutory analysis, but the use of the seven standards to define "just cause."
As a practical matter, however, the statutory standards serve as a vehicle to address
parties' arguments. This does not bind the County to a contractual definition of "just cause"
includes the Daugherty standards or those of Sec. 59.26(8)5m, Stats. Rather, it reflects their
significance to the arguments of the Association, and their utility in addressing those
Application of the standard I have used in the past, which the County cites, School District
New Richmond, MA-8376 (McLaughlin, (07/94), would not produce
different ultimate conclusions than those stated below. Thus, the parties' dispute on
the issue is more
academic than fundamental. The analysis now turns to the standards of just cause listed at
59.26(8)5m, a - g, Stats.
Whether the deputy could reasonably be expected to have had
the probable consequences of the alleged conduct.
This subsection demands a two-fold determination. The first aspect is the
conduct supporting the discipline. The second is the disciplinary ramifications of the conduct
"probable consequences". Each must be tied to the Grievant's knowledge. Generally, the
assert two areas of conduct. The first is failure to comply with the 72 hour rule and the
misrepresentation of fact.
There is no dispute that the 72 hour requirement was published throughout the
over a considerable period of time. Nor is there a dispute that the Grievant was aware of the
which, under Section 2(b), requires adherence to departmental policies. There is, however,
as to whether the Grievant could be expected to know the existence and extent of the
ramifications of a violation of the rule. The evidence does not indicate that the Grievant was
obligated to file a First Report concerning a subluxation of the 1996 separation. Beyond
testified that the Grievant spoke with her perhaps as early as January 2 concerning the injury.
limits, but does not eliminate the County's disciplinary interest in the application of the 72
The rule is not restricted to the filing of a First Report, and seeks that employees "tell a
about a work related injury. Hofer is not a supervisor, nor even a departmental employee.
Grievant had to have known this. Whether or not the subluxation was an original injury, the
has a disciplinary interest in its prompt reporting to a supervisor. The assertion that the
cannot be expected to understand that a supervisor has an interest, potentially disciplinary, in
employee failure to report a significant work-related injury is unpersuasive.
The significance of the County's interest is, however, debatable. The citation of
of the Policy does not establish a specific County interest in the Grievant's failure to report
to a supervisor. The section is a catchall provision that adds nothing to the 72 hour rule.
the evidence falls short of establishing that the Grievant could reasonably be expected to
that the failure to report to a supervisor exposed him to summary termination under Section
the labor agreement. Rather, the evidence points to conduct that could invoke progressive
under Section 9B.
The County's interest in the Grievant's filing of the September 26 and October 28
a separate point. The alleged conduct is misrepresentation of fact. The entry of false
a Worker's Compensation document is "so serious that any employee . . . may
properly be expected to know already that such conduct is offensive and heavily
Enterprise Wire, 46 LA at 363. The County points to the provisions of Sections 2(d) and
the Policy, but in their absence the Grievant can reasonably be expected to know that the
of a record is an offense falling more within Section 9C than 9B.
Whether the rule or order that the deputy allegedly violated is
The reasonableness of the rules asserted against the Grievant is not seriously
72 hour rule had a direct fiscal impact on the County while Wausau paid a compliance
Even in the absence of the dividend, the prompt reporting of a work-related injury can affect
insurance rates and treatment options. The reasonableness of an order enforcing the honest
of injuries stands without codification as a rule. The County's citation of Sections 2(d) and
the Policy is thus persuasive. As noted above, Section 2(b) is too broad to afford specific
That Chambers instructed Hofer not to file the September and October forms does not
from the reasonableness of the rules. The instruction reflected his conclusion that the forms
a misrepresentation of fact that he could not support, individually or on behalf of the County.
reasonableness of his conclusion is best addressed in the application of the remaining
Whether the sheriff, before filing the charge against the deputy,
made a reasonable effort to discover whether the
deputy did in fact violate a rule or order.
The Association accurately notes that Sheehan relied on Chambers to investigate.
operation of this standard turns on the reasonableness of that effort.
The Association's arguments have force regarding the investigation of the violation of
hour rule. There is no persuasive evidence that Chambers considered what type of report
necessary. If a First Report was necessary, Chambers did not order one. If something less
was necessary, there is no persuasive evidence that Chambers investigated whether the
one. Hofer's testimony that the Grievant approached her on January 2 does not appear to
discovered prior to the filing of charges.
The force of these arguments, however, falls short of demonstrating an unreasonable
to find fact prior to filing charges. As noted above, the 72 hour requirement does not
demand the filing of a First Report, but an injury report to a supervisor. That a First Report
have been necessary for the December 31, 2001 subluxation cannot
obscure that Chambers, as the Grievant's immediate supervisor, was one of two people
have conclusively known if a report had been made. The Grievant was the other, and
attempted to obtain the Grievant's view of the matter. More significantly, the September 26
acknowledges that the Grievant did not notify the County. The October 28 form states a
Employer Notified" response of "10-28-02". The Grievant, however, filed this with Hofer.
That Chambers declined to file the September and October forms has no bearing on
investigative effort. That action reflected a conclusion that the investigation was to test. On
the evidence establishes that Chambers' investigation of compliance with the 72 hour rule
Chambers' investigation of the alleged misrepresentation of fact on the September 26
October 28 forms is difficult to fault. Fundamental to this is that the initial suspicion
September 26 form was traceable to direct participants in the events of the asserted time of
Lillyroot took the Grievant home and noted the alleged time of injury to Chambers, who
participated in the interview that took from 1:29 p.m. until 1:45 p.m. Beyond this,
with the Grievant prior to the interview. Prior to addressing his concerns to the Grievant,
reviewed his own reports and the tapes of communications between the Grievant and the
Communications Center. He discussed the events of the day with Lillyroot and Sheehan.
he approached the Grievant, who declined to offer any information on the events of
2001. This cannot be held against Chambers.
Chambers did not interview Swenson to determine the existence or extent of the
reported by the Grievant on December 31, 2001. However, this standard does not demand a
effort, but a reasonable one. Chambers' investigation was reasonable.
Whether the effort described under (in the preceding section) was fair
The Association's arguments on this standard have considerable persuasive force.
served as investigator and witness. Daugherty's description of the operation of this standard
ambivalent on this point. This ambivalence is, however, dissipated to the extent these roles
that of a prosecutor, see Enterprise Wire 46 LA at 364.
The force of the Association's arguments is traceable to the prosecutorial-like aspects
investigation. The evidence indicates that when Lillyroot expressed concern with the date of
stated on the September 26 form, Chambers viewed the statement as a misrepresentation.
to speak to Swenson or to examine Hospital records makes his inquiry look less like
a search for evidence to corroborate his conclusion.
Swenson and the records were directly relevant to a concern that the Grievant faked the
the investigation showed no evident interest in testing what the Grievant stood to gain by
misrepresenting the time of the injury is also troublesome. That Chambers did not retain the
tapes he reviewed is also troublesome. The investigation, to a troubling degree, represents
search for fact than for corroboration of an already-reached conclusion.
Against this, however, must be weighed the nature of the conduct being investigated.
the Grievant had direct access to the most crucial data regarding the incident. Whether,
how the injury occurred are ultimately knowable only to the Grievant. After compiling the
information that confirmed his conclusion, Chambers called in the Grievant for an
interview on October 28. The Grievant had the assistance of Union representatives.
disclosed the information he had and offered the Grievant the opportunity to respond. The
taped the interview. Chambers did not act at the close of the interview. He freely advised
Grievant on how he was about to proceed, including reporting the Grievant's responses.
Even if the
Grievant chose not to immediately respond, the interview gave him a basis to provide
the County concerning the questioned conduct. The Grievant responded by asserting his
directed him not to respond. There were no criminal charges pending, and no discussion of
with the County.
The Grievant ultimately responded with a phone call later that morning, indicating
attorney had advised him to amend the First Report. He did so, substituting "approx:
1 PM" for "2
PM". He did not afford any meaningful information to the County. The revised form did
address any County concern, for the time alleged still fell within the period of time covered
The persuasive force of the Association's arguments breaks down on this point.
whether Chambers had become unduly prosecutorial fell within the Grievant's control. He
to supply sufficient information to challenge that already disclosed by Chambers. Chambers
oppose the amendment, which could have clarified the suspicions surrounding the form. The
reference to "approx: 1PM" did not.
More to the point, Chambers' open disclosure of the information must be considered
objective, even if the investigation was incomplete. Beyond this, his open disclosure of the
anticipated taking in response to the October 28 meeting, his willingness to consider the
and the delay between the investigatory meeting and any final decisional process must be
fair. The Grievant could have supplied information to test the extent of the fairness.
conduct was not that of a prosecutor.
Although the Association's arguments have persuasive force, the evidence establishes
investigation was fair and objective.
Whether the sheriff discovered substantial evidence that the deputy
violated the rule or order as described in the charges filed against the
Application of this standard is the most troublesome issue in the grievance. It poses
contractual and factual difficulty. In Winnebago County, at 22, I addressed the contractual
difficulty with the comparable Daugherty standard thus:
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
whether the grievant committed a disciplinable offense. Enterprise Wire itself falls short of
mark, since it is apparent the testimony at hearing turned on whether the alleged offenses
as alleged. This tension between a purely procedural analysis of the employer's investigation
substantive analysis of the allegations is reflected in the seven standards. The fifth standard,
example, turns on whether the investigation provided "substantial evidence" of guilt. . . . To
experience, an employer investigates an offense to the point that it is convinced prompt
necessary. Assuming this comports with the "substantial" requirement of standard 5, should
arbitrator ignore evidence discovered or presented after the employer's investigation? It is at
arguable that an employer could acquire "substantial" evidence of an offense a grievant did
The final sentence points to the strength of the County's case
under a strictly procedural application
of the standard. Because of the nature of the dispute regarding the time of the December 31,
injury, Chambers' investigation had obtained full responses from all of the witnesses to the
between "approx: 1PM and 2PM" except one. That one was the Grievant, who declined to
contribute any substantial information. By any view of the term, this is "substantial"
The analysis cannot, however, end there. As noted above, a purely procedural
review of the
investigation falls short of what is demanded in a "just cause" determination, which must
evidence produced at hearing concerning whether the alleged misconduct actually took place.
this record, this is a difficult matter. The difficulty is traceable to the way the Association
grievance. It rested on the completion of the County's case. This is not to fault the
tactic. The grievance was well-tried, and the Association's choice starkly poses the issue
the County met its burden to prove conduct that warrants termination. It effectively argues
County's proof cannot establish a deliberate misrepresentation of fact.
This argument has a substantive and a technical aspect. The technical aspect
of proof issues, and the substantive is that the evidence falls short of establishing
While the force of the Association's position must be acknowledged, it does not, in my
establish a County violation of this standard.
As preface to a review of the record, it is necessary to define the specific conduct at
The Association's position is strongest regarding proof of the intent to deceive. The
this position is that the intent to deceive is not a necessary element of the County's charges.
are no pending criminal charges against the Grievant, and this is not a criminal or a
proceeding concerning fraud. Chambers' testimony succinctly summarized the County's
view of the
Grievant's conduct in response to a question regarding how he could know whether the
26 form was no more than a mistake. He responded: "I would not have any way of
knowing . . . I
just know it did not happen."
This response points to something distinguishable from criminal or civil fraud. It
directly to the core of the employment relationship, and to a course of conduct that
breached the standards that can reasonably be expected of a law enforcement officer. With
background, it is necessary to review the evidence.
Contrary to the Association's forceful arguments, there is no reliable evidence to
the credibility of County witnesses. The initial suspicion concerning the alleged time of
from Lillyroot, whose credibility is unchallenged. She stopped short of testifying that the
sought to deceive. Rather, she testified that the injury could not have come as asserted in the
September 26 First Report. Hofer was similarly unwilling to speculate regarding the
in filing either form. Nor will the record support questioning Chambers' or Sheehan's
There is no persuasive evidence their recommendation is traceable to personal as opposed to
departmental concerns. Rather, the evidence is that their testimony reflects work-based
significant issues of misconduct. There is no evidence either had anything to gain personally
recommendation. The assertion they were looking for an excuse to terminate him by any
breaks down with regard to the events of January 23 and 24, 2001. On January 23, 2003,
issued the Grievant a written reprimand. The Grievant confronted Sheehan and Chambers,
contending they sought his stripes. Chambers' notes of the meeting indicate the Grievant
badge and stripes onto Sheehan's desk, then angrily denounced Sheehan's conduct. The
submitted a letter of resignation before leaving the office that day. The following day, the
relented, apologized for his behavior and asked to rescind the resignation. That he ultimately
his stripes is impossible to reconcile with an assertion that Sheehan and Chambers were out
terminate him by any available means.
As witnesses, nothing in Sheehan's or Chambers' demeanor indicated anything other
effort to bring about a necessary, but distasteful result brought on by the Grievant's conduct.
reticence to say whether the Grievant wore a jacket or whether it was wet enhances, rather
undercuts their credibility. Their responses were not combative.
More specifically, this underscores the significance of their testimony concerning the
of the squad car on December 31, 2001. There is no basis to question this testimony. That
would write a report on it, or remember it the following fall is not inherently suspect. The
the first time he had to inventory a squad for a deputy's personal effects. He stated the
was distasteful to him. Memory is inevitably colored by interest, but there is no reason to
the events of the day were memorable to Chambers as they occurred and as they were
More significantly, the evidence supporting the termination is ultimately traceable to
Grievant's conduct. Swenson's testimony that the Grievant was in great pain when examined
December 31 is credible. His prescription of Vicodin confirms this. However, it highlights
questions underlying the events from "approximately" 1:00 p.m. through 2:00 p.m.
Swenson's testimony means that the Grievant reported to and completed an investigatory
during which he operated a tape recorder, then rode home without displaying any evident
pain. Even ignoring the difficulty of accounting for why he would not tell anyone during
of time what had happened to him, this course of conduct poses serious questions.
Other evidence only compounds these questions. Barron's October 24, 2002 report
"His last subluxation occurred on December 31, 2001, when he slipped in his
garage while washing
his squad car" (emphasis added). Whether or not Barron accurately recorded what the
need not be decided to note that significant questions surround the Grievant's conduct on
Against this background, when specifically confronted with evidence questioning the
of injury, the Grievant did no more than change it to "approx: 1PM." He did not then and
now assert his failure to respond more completely is privileged. It is difficult to believe he
advance a Worker's Compensation claim and refuse to respond to questions concerning
Even if he could, as a contractual matter, it is evident that he chose to respond to the
meeting. He asserted the alleged sick leave problems were traceable to his shoulder
declined to offer detail. He amended the September 26 form, without prompting and
pressure from the County. Chambers and Sheehan perceived the response as inadequate. It
Under any view of the evidence, the County raised substantial questions regarding the
Grievant's conduct. It is not necessary to determine his motive in not responding to
faced with these questions, he chose to respond with something less than candor. The
issue is not whether this lack of candor constitutes fraud or misrepresentation. Rather, it is
Sheehan could reasonably conclude that the lack of candor fundamentally breached the
honesty to be expected from a law enforcement officer. His and Chambers' view that it did
reasonable and rests on substantial evidence.
The difficulty with the Association's view is that it effectively asserts that if the
cannot be found guilty of fraud, he must keep his job. I am unwilling to conclude that the
cannot reasonably ask more. His conduct in responding to the investigation is as
fundamental to the
termination decision as the observations of Sheehan and Chambers. Not only does that
refute the charges against him, it supports them.
Viewed as a technical matter, the County presented a case that stood in the absence
rebuttal. In the absence of credible evidence rebutting it, the County met its burden of
Quantum of proof is not an issue. This is not a criminal matter, and no standard of proof
either party undercuts the conclusion stated above. It is not necessary to take "an adverse
based on the Grievant's decision not to testify at the arbitration hearing. His course of
throughout the investigation, including the refusal to testify at the arbitration hearing left the
significant charges against him unanswered. This conduct speaks for itself.
Whether the sheriff is applying the rule or order fairly
and without discrimination to the deputy.
This standard poses no issue beyond those already addressed. The Association urges
Grievant is the only deputy whose First Report was not filed with the insurer. This is
fails to establish discrimination. The Grievant is also the first deputy suspected of falsifying
form. In any event, Chambers' conclusion to halt the processing of the First Report has no
on the absence of any report of the injury to a supervisor. Beyond this, further processing
would have had no bearing on the County's concern with the candor displayed by the
reporting the injury.
The Association has advanced forceful arguments, but the evidence establishes that
Grievant was offered the information that might prompt charges and afforded meaningful
to respond. He was treated fairly.
Whether the proposed discipline reasonably relates to the seriousness
of the alleged violation and to the deputy's record
of service with the sheriff's department.
As noted above, the violation of the 72 hour rule cannot be considered serious
warrant anything beyond progressive discipline under Section 9B. Fraud is sufficiently
warrant summary termination under Section 9C. However, as noted above, the record does
concern fraud. Rather, the record questions the Grievant's lack of candor in addressing
work-related issues. Whether or not this warrants termination poses a closer issue which
in his record of service.
Swenson had a high opinion of him. The Grievant attended to the arrest in 1996
Swenson, who added that he treated the Grievant on another occasion for injuries sustained
being struck by a car while attempting to make an arrest. No arbitrator can judge the quality
difficulty of a law enforcement officer's performance, and I make no pretense of doing so.
review of a Sheriff's determination is difficult enough.
More to the point, the evidence shows that the Grievant received a verbal reprimand
13, 1994 for "attitude"; on March 27, 1997 for "attitude"; on October 15, 1998 for
"conduct"; on March 15, 1999 for "substandard work"; and on November (unspecified day),
for "evidence left on his desk and not being entered into evidence". He received a written
on June 12, 2000 for "conduct". He received a one-day suspension on January 23, 2001 for
"conduct" which is touched on above. He received a two-day suspension on June 28 for
from training/sick leave abuse". He received a five-day suspension on October 31, 2002 for
Similar to the questions posed regarding the December 31, 2001 injury, this record
without rebutting testimony. This has contractual significance under Section 9B, which
makes a "not
contested . . . disciplinary action . . . a valid warning." There is no persuasive basis to
Chambers' conclusion that the Grievant's lack of candor would have provoked the
termination of an
employee with a spotless record. Whether or not this is true, the Grievant's record is not
and fails to undercut the reasonableness of Chambers' recommendation and Sheehan's
terminate. The charges against the Grievant concerning misrepresentation are significant,
response to them, directly and through his work record, is insufficient to undercut them.
The County has, then, proven just cause to terminate the Grievant's employment.
The County has just cause to terminate Deputy Don Miller.
Dated at Madison, Wisconsin, this 16th day of September, 2003.