BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GREEN BAY POLICE PROTECTIVE
CITY OF GREEN BAY
Thomas J. Parins, Jr., Attorney at Law, Parins Law Firm, S.C.,
appearing on behalf of the Association.
Jerry H. Hanson, Assistant City Attorney, City of Green Bay,
appearing on behalf of the City.
The Association and City named above are parties to a 1999-2001 collective
agreement that provides for final and binding arbitration of certain disputes. The parties
Wisconsin Employment Relations Commission to assign an arbitrator to hear the grievance of
Stephanie Gulovich. Steve Morrison was assigned as the arbitrator and heard the dispute on
9, 2003, in Green Bay, Wisconsin. After the hearing, but before the parties completed their
schedule, Mr. Morrison left the WERC and the case was transferred to Arbitrator Karen J.
Mawhinney for a decision. The parties completed filing briefs on August 20, 2003.
The parties stipulated at hearing that the issue is whether Officer Gulovich was
disciplined with a written reprimand as a result of an incident on January 22, 2002.
The Grievant is Stephanie Gulovich, a police officer with the Green Bay Police
At the time of the accident on January 22, 2002, which led to the reprimand being grieved
had been employed with the Department for two and a half years.
About 4:00 p.m. on January 22, 2002, the Grievant was working her regular shift on
side of the downtown area when she was dispatched to a call over the radio and also called
computer. The Grievant and another officer, Brenda Kulow, were both sent to a house on
side of the city for an uncontrollable 14-year-old. Officer Kulow, who was closer to the
responded first to the call, and the Grievant could hear her siren over the radio. The
acknowledged to the dispatcher that she was also headed to the scene. The Grievant believed
situation required an emergency response because there was a 14-year-old male out of control
anyone could be in danger. The officers were told that the juvenile had kicked the caller and
out of control. The Grievant responded with her red lights and siren - then there was
dispatch that said that he had grabbed a video game and went into the basement and was
separated from the caller at that time. The Grievant did not feel that she knew enough about
situation to believe that things were under control. She wanted to get to the scene as quickly
possible to back up the other officer, because she did not know the size of the juvenile, how
react to the other officer or how much out of control he was at the time. She was uncertain
the parties were actually separated. The Grievant was about five miles away from the scene.
The Grievant came up to the intersection of West Mason and 12th
Avenue on the west side,
which was about two miles from where she started the call. She was heading west in the left
West Mason. As she approached the intersection, all the traffic in front of her was blocked
in all the
lanes. She slowed down, went into the clear eastbound lane because there was a red light,
cleared the intersection and was going back through the westbound lane when she accelerated
the back of her car spun out. The car apparently spun out due to a puddle on the road,
Grievant did not see before the accident. It was a sunny day and the roads were dry for the
After the car spun out of control, she crossed a raised median and the front end of her car
rear bumper of a vehicle that was waiting at the red light on the other side. She was not
speed limit when she started to accelerate and slide. She believed she used due regard as to
situation and her driving. The Grievant had a sore neck from the accident, and the other
indicated that she was fine at that time. The Grievant received medical treatment for her
vehicles sustained some damage the investigating officer estimated damage to the
squad car at
$1,000 and less to the other vehicle. The investigating officer also marked the accident
report as the
Grievant driving too fast for conditions and failure to have control. The Grievant agreed that
could not get control of her car after she spun out but disagreed that she was driving too fast
The Grievant testified that a situation requiring an emergency response would be
someone is in danger of being seriously injured or there could be serious property damage.
makes the decision to respond to an emergency, she turns on her lights and sirens.
The severity of the call determines how fast she drives. At stop signs and traffic
lights, she makes
sure that the intersections are cleared and there are no vehicles in her way. The Grievant
she was responding to an emergency based on a potential crime of violence in progress or to
a crime of violence. She has responded to emergencies in the past without discipline or
In this case, the Grievant did not discontinue the red lights and siren because she did not feel
threat was gone and that everyone was out of danger. Had she known that there was no
would have turned off her lights and siren.
Officer Kulow was meeting with Lieutenant Mark Hellmann in a city-owned parking
she received a call from the dispatcher who contacted her and the Grievant and told them to
heading to Shirley Street for an out-of-control juvenile. Kulow told Hellmann, "That sounds
emergency response to me." He said, "Yeah, you're out of here." (Hellmann testified that
he did not
recall that she received a dispatch during their meeting.) She pulled out of the parking lot
lights and siren on. She called the dispatcher to try to get more information and received the
that the juvenile had gone to the basement. However, she did not know if the caller was in
basement with the juvenile or whether anyone else was in danger. When she got to the
knew the Grievant was coming and could hear sirens, but then they stopped. Kulow
house and listened for a disturbance, but it was quiet. By then, Kulow knew that the
been involved in an accident and would not be responding, so she knocked at the door.
not counseled or disciplined for using her lights or sirens in this incident. No one spoke to
it, and she was positive that Hellmann would have known that she was responding in an
fashion. Kulow has responded in similar situations with emergency lights and sirens and has
been counseled or disciplined for responding in that manner.
Lieutenant Andrew Lewis was dispatched to the accident that involved the Grievant.
the Grievant and the other driver told him that they were not injured and declined any
attention. Both drivers gave him the same account of the accident. Lewis found most of the
surface to be dry but there was a wet spot on West Mason right before the point of collision.
wet spot was not something one could clearly see. He concluded that the wet pavement and
speed of the squad car caused the squad car to go out of control, hop the divided median and
into the stopped vehicle. Lewis testified that in order to the squad car to lose control, hop
up on the
median, crash into another vehicle and have the bumpers lock, acceleration would be a
factor to the accident. Lewis believed that the Grievant would have to be accelerating
the whole process including while going over the median strip. He did not believe that she
the gas and was not sure what she did with her steering. The bumpers could have hooked
because of the height disparity between the squad car and the struck vehicle, a sport utility
While both drivers agreed that the Grievant went through the intersection slowly, the
him that she started to accelerate. Lewis testified that he could have issued the Grievant a
for the accident, citing driving too fast for conditions. He also could have cited her for
failure to use
due regard or crossing the centerline. Emergency vehicles are granted certain exceptions
rules of the road. On the night of the accident, Lewis counseled the Grievant to
slowly when on wet pavement. He noted in his report that she displayed a good attitude.
met with Commander Alan Timmerman to review the incident.
Timmerman was the Chief of Police at the time of the hearing in this matter but was
Commander of the Operations Division at the time of the accident. He reviewed all
involving police department vehicles. Timmerman reviewed the disk of the dispatch incident
accident report. After listening to the recording of the dispatch, he found that an emergency
to the call was unnecessary and that the accident was completely avoidable. Timmerman
it was clear that the juvenile had taken a Nintendo game and gone downstairs, that he was
from the caller and there was no threat or a continuing physical disturbance. Timmerman
while the 14-year-old had kicked the caller, he was not continuing the kick the caller, and if
felt threatened, the caller could have left the house.
The Department policy and procedures state that emergency response using
and sirens requires a true emergency. It also provides that an officer must be able to
reason for believing that there is a high probability of death or serious injury to an individual
significant property loss. The elements that may indicate a high probability of death or
include 1) a serious public hazard; 2) a crime of violence in progress; 3) the prevention of a
violence; and 4) an officer needing assistance and immediate aid. Timmerman did not
believe that any
of those elements were present in the situation at issue here.
In determining the disciplinary action, Timmerman also considered the fact that the
had a prior accident with a personnel file entry report. While on duty on
September 25, 2001, the
Grievant had made a traffic stop in a parking lot and pulled her car over to make room for a
party to leave when her bumper rubbed up against the bumper of another parked vehicle.
a black scuff mark on the vehicle that she hit.
Timmerman thought the Grievant had a good attitude about this current accident and
admitted that she lost control of the car. He noted that she used due regard going through
intersection before the accident, but when she lost control of the car, she no longer was using
regard. State law requires one to operate a vehicle at a reasonable and prudent speed limit
control it to avoid colliding with any object, person or vehicle. State law also requires one
an emergency vehicle to drive with due regard under the circumstances for the safety of all
using the highway.
An attorney representing the person who was struck by the Grievant's car filed a
claim. The vehicle struck sustained damages between $547 and $580 and the driver had
about $2,000 in medical and chiropractic costs with total damages unknown, and the claim
damages of $10,000.
THE PARTIES' POSITIONS
The City asserts that it had just cause to issue a written reprimand given the totality
circumstances. There was the questionable use of emergency lights and siren where the
had informed the Grievant that that the violent juvenile was in the basement and possibly
from the caller. The Grievant failed to properly control her car, causing a significant
accident and her
second accident within a four-month period. She received an administrative registry
the prior accident.
The City submits that the Grievant could be expected to know the probably
her conduct and even admitted that the accident should not go without discipline. The rules
violated are reasonable based on state law and department policy. An emergency
have initially been required but was no longer needed once dispatch informed the Grievant
male grabbed a video game, went into the basement, and may possibly be separated that that
The Chief met with the investigating officer, listened to a recording of the dispatched
call, and met with the Grievant. His effort to get the relevant information was fair and
When Timmerman listened to the tape, it was very clear that the caller and the juvenile were
separated. He considered giving the Grievant a suspension because of the severity of the
He found that Kulow's actions were distinguished from the Grievant's where Kulow sought
clarification of the facts and the Grievant did not. The Grievant's good attitude was a factor
ultimate decision for a written reprimand. It was a reasonable disciplinary measure under all
The Association notes first that management has the burden of proof to show that the
discipline is warranted and proper. It asserts that the Grievant responded properly to the call
she used an emergency response which included emergency lights and siren. Officers are to
with emergency lights and sirens when a crime of violence is in progress or to prevent a
violence. The officers were responding to the call that there was a crime of violence in
a fast response may have kept it from escalating. Both of the officers responding
that an emergency response was necessary. Furthermore, Kulow's siren was audible to the
dispatchers, and no one from management or dispatch told her that an emergency response
inappropriate. Kulow was never disciplined for using an emergency response. Rules must
enforced and penalties assessed consistently, and the two officers that responded to the same
the same fashion were not treated equally one received discipline and the other was
Referring to the first factor of the seven criteria used in Section 62.13, Wis. Stats.,
discharge and suspension cases, the Association states that the Grievant did not have any
of the possible consequences of her conduct. On its face, the emergency response
policy is reasonable but leaves a lot of discretion and judgment to the officer. The
that management did some investigating in this case but did not discuss the matter with
Kulow to see
if she also thought that this was an emergency situation. The Association further asserts that
effort was not fair and objective. Management wanted to discipline the Grievant because she
involved in an accident, and did just enough investigation to justify a discipline in their
The Association also contends that the Chief did not discover substantial evidence that
Grievant violated the rule or order as described in the discipline. Both officers independently
to the same conclusion about what type of response was warranted to the call. The Chief did
apply the rule or order fairly and without discrimination against the Grievant. Moreover, the
discipline is not reasonably related to the seriousness of the alleged violation and the
record of service. The Grievant has a clean record and her only violation is when she
backed into a
parked car in a parking lot. The discipline is too severe and there should be no discipline in
matter given the circumstances.
The Association submits that the Grievant used due regard in operating her squad car.
going through the intersection, she accelerated as she had been trained to do. She used
taught to her. Road conditions were dry and she would not be expecting a wet patch on the
The only fact that management is using to say that she did not use due regard is the fact that
end of the car spun out and she happened to lose control. While the Grievant used due
operating her emergency vehicle, that does not always prevent accidents. That is why they
In Reply, the City
The City responds by stating that while the Association indicated that the Grievant
a puddle in the road, the pictures show the entire westbound lane was wet. Officer Lewis
strange that the car would spin, pop up over the raised median, cross two lanes of traffic and
a vehicle unless the squad car was accelerating throughout that process.
The City asserts that officers understand that they may receive discipline if they are
or reacting reasonably. For some reason, the Grievant was accelerating throughout this
thereby causing significant damage. When you add the other questionable activities, such as
there was a true emergency and her previous discipline, you can find that the subordinate
reasonably be expected to have had knowledge of the probable consequences of the alleged
While the Association indicates that management did not do enough when
happened, Timmerman met with Lewis and got a copy of the dispatch from Brown County
Communications. Timmerman met with the Grievant and made a decision based upon all the
he could accumulate. Timmerman's effort was fair and objective, and the Association does
what else he should have done.
Section 346.03, Wis. Stats., requires the operator of an authorized emergency vehicle
with due regard under the circumstances for the safety of all persons around them. The
required to look for actual and potential hazards that existed. As the picture exhibits show,
westbound lanes of Mason Street were wet. The Grievant attempted to accelerate and did so
improperly, so much that her car spun out and went over a raised median. A reasonably
officer performing similar duties at least would not have lost control of the vehicle to such an
that the officer pushes on the accelerator and proceeds to jump a tall median. That is not
reasonable officers are trained to react during a spin out. As Lewis testified, he would have
off the gas, made sure he wasn't over braking, and tried to steer out of a skid. He did not
the Grievant got off the gas.
Timmerman also indicated that a reasonable officer would have come to the
there was no need for an emergency response. Once the Grievant learned that the male had
the basement and was possibly separated from the caller and the Grievant knew this
accident there was no true emergency and the emergency response should have
ceased at that point.
The City submits that Kulow's actions were quite different from the Grievants. Kulow asked
clarification regarding the information as to whether the male had gone into the basement. It
zone, she was closer to the scene, and she waited at the scene for the Grievant to arrive
listening at the door to see if there was any physical disturbance.
Finally, the City disagrees with the Association that there should be no discipline in
matter. The discipline was reasonable based on the totality of the circumstances. The
not need to be responding in an emergency fashion as there was no true emergency, she did
any clarification of the emergency, she did not control her car while accelerating, and during
she accelerated, jumped a median and hit another vehicle, causing significant property
personal injury. Four months prior to this, she was involved in another accident where she
a discipline of counseling registry.
In Reply, the Association
The Association responds to the City by stating that the reasoning regarding the
used by the City is faulty. The first circumstance that the City uses is a questionable use of
lights and sirens. However, the other officer also concluded that an emergency response was
appropriate, and the Grievant's own conclusion was affirmed when she heard Kulow using
If the emergency response was inappropriate, all officers responding in that manner should
disciplined or at least counseled. While the City tries to distinguish the actions of Kulow and
Grievant by noting that Kulow sought clarification, all radio traffic from the cars is heard by
cars. Therefore, Kulow and the Grievant would both hear the same dispatch, and it would
sense for the Grievant to make the same request to the dispatcher and tie up the airways.
is no indication that Kulow changed her type of response to the situation at any time prior to
on the scene. The Association asks why is the use of emergency response with red
lights and sirens
appropriate and not questionable for Kulow but the same type of response by the
inappropriate and questionable? The response was not questionable and should not be
the basis for discipline.
The Association also reviews the next circumstance, whether the Girevant failed to
control her car. While Lewis found the pavement in the westbound lanes to be wet, the
lanes were dry. The Grievant was approaching the intersection using the dry eastbound lanes
she needed to pass other cars at the red lights. She then went back into the westbound lane
the puddle which she could not see before the accident.
The Association notes that the Grievant could not reasonably be expected to have
of the probable consequences of her conduct that just because she had an accident,
she would be
disciplined. She used due regard in driving up to the point where the back end of her car
A reasonable officer could not expect to be disciplined for using emergency lights and sirens
type of matter. Three members of the Department felt an emergency response was
no other officers were disciplined. The Association agrees that the rules are reasonable but
that no rules were violated.
Further, the Association agrees that a reasonable effort was made to find out the
the parties differ on the interpretation of the facts. The effort was not fair and objective,
management wanted to discipline the Grievant because she had an accident, and they were
find a reason to discipline if at all possible. The City argued that there was substantial
the Grievant violated state laws and Department policies. That contention cannot be
because the caller and juvenile may have been separated does not mean that the juvenile was
violent with somebody else in the home, or that he was not going to get some weapons or
and be violent again. The officers responded in an emergency fashion because there was a
violence in progress and a fast response may have prevented the situation from escalating.
also argued that the Grievant failed to control her car. The Association notes that just
someone loses control of a car does not mean he or she is not using due regard and driving
The City has no evidence that the Grievant was not using due regard.
The collective bargaining agreement provides a just cause standard for discipline.
also look at Section 62.13, Wis. Stats., as their guidance for the just cause standard. Since
analyze it from that basis, the Arbitrator will also look at the seven factors listed in Sec.
1. Whether the subordinate could reasonably be expected to have
had knowledge of the probable
consequences of the alleged conduct.
2. Whether the rule or order that the
subordinate allegedly violated is reasonable.
3. Whether the chief, before filing the charge against the
subordinate, made a reasonable effort
to discover whether the subordinate did in fact violate a rule or order.
4. Whether the effort described under
subd. 3 was fair and objective.
5. Whether the chief discovered substantial
evidence that the subordinate violated the rule or
order as described in the charges filed against the subordinate.
6. Whether the chief is applying the rule or
order fairly and without discrimination against the
7. Whether the proposed discipline
reasonably relates to the seriousness of the alleged violation
and to the subordinate's record of service with the chief's department.
As to the first factor, the alleged conduct in this case is based on two things
response and the loss of control of the squad car. The emergency response is an important
this case, because the City states (Joint Exhibit #3) that "An emergency response to this call
unnecessary and this accident was completely avoidable." If the Grievant had not been
in an emergency fashion, the accident would not have happened. She would not have been
accelerating in a manner to get to the scene quickly. Therefore, an analysis of whether or
emergency response was needed is in order here.
The policy for using emergency lights and sirens states that there must be a true
and an officer must be able to articulate his or her reason for believing there is a high
death or serious injury to an individual, or significant property loss, and that action by an
vehicle operator may reduce the seriousness of the situation. Whether or not there was a
emergency is only seen in hindsight in this case. At the time of the dispatch, there was a
concerned about a young male being violent, and two officers decided independently that an
emergency response was warranted. They were able to articulate their reason that
there was a
probability of serious injury. They did not have enough information to discount that
after the dispatcher told them that the caller and juvenile may have been
separated. It was the
unknowns that caused the two officers to respond as they did.
The problem with determining whether an emergency response was needed is
it becomes a convenience of hindsight to say now that it was not needed. Would it have ok
Grievant did not have an accident? The answer to that appears to be yes. So once one
results, the actions can be judged. Secondly, if the emergency response was appropriate for
Kulow, why not for the Grievant, who was farther away and needed to back up another
Accordingly, the emergency response has to be appropriate for both, as long is it is
one officer answering the same call and having the same information.
The Grievant could not reasonably be expected to know that she would be disciplined
using an emergency response in this situation. She already knew that another officer was
with a siren, since she could hear it on the radio dispatch.
As to the matter of her driving conduct, the Grievant could reasonably be expected to
that using an emergency response could result in an accident. That would seem to be
knowledge, and the reason why emergency responses are restricted in the manner the policy
However, if emergency responses are appropriate in some situations, the resulting
potential traffic accidents have to be accepted as well. One should only receive discipline in
cases where one has been negligent or not using the due regard for the safety of all persons.
Grievant did not appear to do anything wrong as far as the Arbitrator can tell. Everyone
she moved through the intersection in an appropriate manner, and it would have been the
that was potentially more dangerous than the street. The evidence is not clear whether the
street side was wet from melting snow or whether there was a puddle that the Grievant hit.
rate, she hit something that caused the rear end of her squad car to spin out. Further, the
is not clear whether the speed of the car and the spin caused the car to jump the median strip
whether the Grievant continued to accelerate, thereby causing the car to jump the median
Either is possible, and accidents happen so fast that no one knows for sure. The only thing
shows with certainty is that the Grievant was using due regard going through the intersection
driving appropriately in an emergency response.
The second factor is whether the rule or order allegedly violated is reasonable, and
parties agree that the rules and orders are reasonable.
The third factor is whether the chief, before filing the charge against the subordinate,
a reasonable effort to discover whether the subordinate did in fact violate a rule or order.
Arbitrator finds that he did. He talked to the investigating officer as well as the Grievant
reviewed the dispatch tape.
The fourth factor is whether the effort to discover the evidence was fair and
seems to be and there is no record evidence to the contrary.
The fifth factor is whether the chief discovered substantial evidence that the
violated the rule or order as described in the charges filed against the subordinate. The
finds there is not substantial evidence that the Grievant violated the rule or order regarding
use an emergency response. The record shows that it could have been an appropriate
another officer was not disciplined for using the same emergency response to the same
call. The officers were able to identify at least one of the elements of the policy for using an
emergency response that a crime of violence was in progress. It is inappropriate for
the City to say
in hindsight that an emergency was not needed, and it appears to say so only because of the
that occurred while the Grievant was making the response to the call.
The sixth factor is whether the chief is applying the rule or order fairly and without
discrimination against the subordinate. Clearly, the City's case falls down on this factor.
Association is absolutely correct in noting that Officer Kulow was not disciplined for using
emergency response, while it is a major part of the basis for the discipline of the Grievant.
attempted to distinguish Kulow's actions by noting that she called dispatch for clarification of
situation while she was one her way. However, the Grievant heard that call and the
answers, so why would the Grievant need to call for clarification also? The City also
Kulow's conduct by stating that address was in her zone, that she was closer to the scene,
factual situation, time, location, and subsequent actions were different. Obviously, there are
differences because the two officers were in separate squad cars. It is very basic that if the
deemed an emergency response inappropriate for the Grievant, it must deem an emergency
inappropriate for Kulow. The City has made the "unnecessary" emergency response a major
for its disciplinary action. There is no logical reason to discipline one officer for an
emergency response (which resulted in an accident) while not disciplining the other officer
responded in the same manner (but did not have an accident). The rule or order has not
fairly or without discrimination in this case.
The seventh and final factor is generally known as whether the punishment fits the
Since there is no reason to issue a written reprimand or any type of disciplinary measure in
place, there is no need to determine whether the discipline is reasonably related to the
the alleged violation.
Based on the record and for the reasons above, the Arbitrator finds that the City did
just cause to issue a written reprimand for the incident on January 22, 2002.
The grievance is sustained. The City did not have just cause to issue a written
Officer Stephanie Gulovich for the incident that occurred on January 22, 2002. The City is
to immediately remove the reprimand from the Grievant's records.
Dated at Elkhorn, Wisconsin, this 19th day of September, 2003.
Karen J. Mawhinney, Arbitrator