By Jim Cline and Troy Thornton
In Merced Sheriff’s Office, 2020 BNA 1296, Arbitrator Patrick Halter upheld the termination decision of an unnamed Merced County Sheriff’s Deputy. The Deputy was fired after giving inconsistent and dishonest answers during an internal affairs interview, stemming from an on-duty sexual rendezvous reported by a passerby.
The former Deputy was spotted in the parking lot of an assisted living center, receiving oral sex from an employee of the facility. The activities were observed by a different employee of the facility, as well as a citizen whose mother was living in the facility and reported to the Sheriff’s Office. The Office investigated, and GPS records from the Deputy’s vehicle confirmed that he was in the parking lot of the facility at the suspected time. To make matters more complicated the unnamed Deputy had recently been charged with serving an emergency protection order on the individual he was allegedly having a sexual relationship with.
Instead of requesting another deputy serve the order on the woman, the Deputy claimed to have done it himself. In reality, the Deputy did not serve the order at all, and later claimed that it was to protect the woman from losing access to her children. At the onset of his internal affairs interview, the Deputy in part denied and otherwise attempted to downplay his relationship with the woman. Later in the interview, he admitted that the relationship was sexual in nature. He claimed not to know the woman’s address, but GPS records confirmed that he frequently stopped by her house and then parked in a nearby lot before returning to the residence. One such incident included a 5-hour stop in the nearby parking lot.
The Union claimed that the Deputy had been coerced during his interview. According to the Deputy, he was told that he would instantly lose his job if he did not change his answers to the questions being asked of him. Additionally, the Union attempted to exclude evidence at the hearing because the witnesses to the assisted living facility incident were not present at the initial hearing to testify.
The Employer, based on the facts mentioned, felt that it was justified in terminating the Deputy. They believed that the witness reports, GPS data from the Deputy’s vehicle, the Deputy’s failure to deliver the EPO to his romantic partner, and his inconsistent statements made during the investigative process established just cause.
Upon review, Arbitrator Halter did not overturn the earlier arbitral decision to uphold the termination of the Deputy. In making this finding, Arbitrator Halter found that the GPS data was compelling enough that, even without the witnesses to the incident appearing at the hearing, the Deputy’s admitted sexual relationship with the woman was sufficient to support the Employer’s decision.
There is no requirement to follow progressive discipline and, regardless, the grave nature of his misconduct during duty hours warrants a severe penalty. As a law enforcement officer, Appellant is subject to a higher standard of expectations and performance given the power and authority his position accords him over civilians. Misdeeds acknowledged by BK justify the reasonable and proportional penalty of discharge. The County “respectfully requests that the termination in this matter be upheld.”
Additionally, Arbitrator Halter agreed with the Employer that the Deputy’s failure to serve the EPO on the woman was frightening in that it was demonstrative of his continued neglect of duty. His failure to do so served the purpose of furthering the interests of himself, and the woman that he was having a sexual relationship with. Law enforcement officers are generally held to higher expectations that those of general employment because of the important role that they serve in protecting their community, and the Deputy’s inconsistent answers sealed his fate.
Arbitration decisions like this make you wonder what the union was thinking as it moved this to arbitration. Having on duty sex — while holding an unserved order in reserve — and then lying about it, hardly seems to leave much to arbitrate. Arbitrator Halter’s conclusion that progressive discipline is not mandated for certain most serious infractions certainly would make complete sense in this context.
Sexual misconduct cases are ordinarily challenging but at times can present arguable progressive discipline considerations depending on the range of circumstances and mitigation. None of those mitigating considerations were presented here.
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