FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 06-55815

POAM No. 06-161
POLICE OFFICERS ASS’N OF MI,
Union,

and

COUNTY OF LEELANAU, MI, and

ITS SHERIFF,
Employer.
_________________________________/

OPINION OF THE ARBITRATOR

February 23, 2007

After a Hearing Held January 9, 2007

At the Courthouse in Leland, Michigan

For the Union: For the Employer:

Douglas M. Gutscher, Esq. John R. McGlinchey, Esq.

Assistant General Counsel, POAM Cohl, Stoker, Toskey & McGlinchey
27056 Joy Road 601 N Capitol Avenue
Redford, MI 48239-1949 Lansing, MI 48933
 I. The Scales Of Just Cause

The scales of just cause require that all evidence be weighed in a

disciplinary proceeding, both that against a grievant and that in his favor. In

terminating Grievant from his job as Deputy Sheriff, the County of Leelanau,

Michigan, and its Sheriff (“Employer”) failed to consider the following

evidence presented at the arbitration hearing as Ux 1 by Grievant’s collective

bargaining representative, the Police Officers Association of Michigan

(“Union”):

(1) Performance Commendation to Grievant from Sheriff’s Office, 2/6/01:

This letter serves to recognize you for the time and effort you have
recently put forth to update and organize the outstanding arrest warrants on file
at the Department.

Your efforts to update the files and disseminate the information to other
local agencies has resulted in the arrest of nearly two dozen fugitives on the
outstanding warrants. …

I sincerely appreciate you taking initiative to coordinate these efforts and

commend you for your many hours of diligent work.

(2) Letter of Citation to Grievant from Sheriff & Former Undersheriff,

2/26/01:

On Sunday February 18, 2001 at 10:22 A.M. you were on routine patrol
traveling upon M-22 in the area of Crain Hill Road. At that time you observed a
North bound vehicle traveling 67 mph in a 55 mph zone. You initiated a traffic
stop and subsequently made contact with the operator, identified as
[“Operator”].

Upon conversing with the operator, you became suspicious due to his
demeanor and the faint odor of suspected marijuana. Your questioning and

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ability to solicit information resulted in an admission of marijuana use and
possession. Armed with this information but not totally satisfied with his
answers and your knowledge of this individual (and associates), you continued
your investigation. You effected a physical arrest and additionally obtained
written permission for a consent search.

You utilized excellent judgement and impounded the vehicle and

contacted officers from the Traverse Narcotics Team in order to share
information. The vehicle was towed to the Sheriff’s garage. A subsequent
undercarriage inspection revealed that the fuel tank contained 27 “bricks” of
marijuana weighing about 1 ½ pounds each. The total street value was estimated
at $40,000 by TNT officials.

Your arrest resulted in charges of DUID, Possession with Intent to

Deliver, Possession of Firearms (by a convicted Felon) and Habitual Offender.
You actions in this encounter were certainly “text book” proper and resulted in a
very sizeable seizure of drugs! However, your perseverance and intellect made
the difference between the issuance of a citation and the arrest of a major drug
trafficker!

Deputy [Grievant], this is another incident in which you have excelled in

the performance of your duties as a law enforcement officer! With respect to
drug interdiction, this is the second time in recent history that you have been
instrumental in a major seizure of drugs in Leelanau County!

We certainly appreciate your dedication, focus and commitment to law

enforcement endeavors within Leelanau County. You represent our agency in
the highest standard and are to be congratulated on a job well done! You serve
the community well and we are fortunate to have you as a Deputy Sheriff. …

(3) Award Letter to Grievant from Sheriff, 5/14/01:

Congratulations on your being selected as “Deputy of the Year 2001” in

the Law Enforcement Division! During the past year, you have excelled as an
employee of this agency.

This award is a result of the command staff reviewing productivity,

abilities, professionalism and your dedication to the work ethic as related to
Sheriff’s Operations in the past year. You have exhibited the characteristics of
an outstanding employee and we are very proud to have you serving the

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residents of Leelanau County. You are to be commended for a job well done.
Thanks for your service to our county. …

(4) Letter of Appreciation to Leelanau Sheriff from Grand Traverse County

Sheriff re Grievant, 5/22/01:

I just wanted to send this letter of appreciation after a very successful

multi-agency dive training on Wednesday, May 16, 2001. Deputy [Grievant] of
the Leelanau County Sheriff’s Office has been diving with the Grand Traverse
County Dive Team for approximately one year. Deputy [Grievant] arranged for
the DNR [Michigan Department of Natural Resources] Commercial Fishing
boat, the National Park Service boat, and a Leelanau County Sheriff’s Office
Marine Division boat to help transport our dive team.

The GTSO Dive Team includes eight sheriff’s deputies (one retired), a
Traverse City Police Officer and Deputy [Grievant] from Leelanau County. Due
to the cooperation of these agencies, we were able to transport all ten divers and
equipment to South Manitou Island. Each of the divers got to dive on the
historically significant ship wreck and, more importantly, have the opportunity
to work with several other agencies and personnel. With cooperation like this
for dive training, it makes me look forward to having any incidents where our
agencies could work together in the future for other training or possible
emergency situations. …

(5) Congratulatory Memorandum to Grievant from Sheriff, 2/12/02:

Congratulations! The Command Officers at T.N.T. have selected you to

represent our agency in their unit. You will be on Holiday/pass on 2/18/02 and
report for duty at their office on 2/19 1400 hours. Please contact Undersheriff
[“Former Undersheriff”] to make arrangements to obtain the vehicle and any
equipment needs. Please see me for your new ID card. …

(6) Letter of Commendation of Grievant to Leelanau County Sheriff from

Grand Traverse County Sheriff, 1/28/03:

[Recitation of events surrounding a tragic, fatal snowmobile accident on

Long Lake].

I was present during almost the entire operation and personally observed
Deputy [Grievant] on numerous occasions either talking to the family and/or

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diving and/or preparing to dive. I would consider Deputy [Grievant]’s
performance on these recovery efforts to be of very high standards and his
professionalism was text book perfect. Deputy [Grievant]’s performance was an
example to all. I am asking the Grand Traverse County Sheriff’s Office Awards
Board to meet during the week of February 3, 2003, to consider Deputy
[Grievant] for the Grand Traverse County Sheriff’s Office Award of Merit to be
issued for diving under such severe and dangerous conditions.

At this time I would also like to personally thank the Leelanau County
Sheriff’s Office and the Leelanau County Board of Commissioners for making
Deputy [Grievant] available to us during this very difficult time. His presence
most certainly made a difference and his being allowed to work with us made it
easier on our staff in sharing the load.

(7) Memorandum of Congratulations to Grievant from Sheriff, 3/18/03:

… On March 18, the [Former] Undersheriff received a voice mail from

you indicating that you had seized 50 pounds [of cocaine] and you apologized
for the amount of over time expended on this specific case. …

[Grievant], congratulations what appears to be an outstanding seizure! I

hope that the follow-up interviews result in information that identify additional
suspects and intelligence as related to drug trafficking within Leelanau County.
Thanks for your dedication.

(8) Letter of Appreciation to Grievant from Sheriff, 8/29/05:

Thank you very much for your service to Leelanau County during the
past week. We certainly appreciate your participation in our attempted recovery
of the drowning victim. We depend on mutual aid and your team’s professional
response as highly trained and experienced divers. As our liaison, you were a
great resource in dealing with the dive team and offering your insights as related
to the area and operations.

We appreciate and acknowledge the personal risks that you took in order
to search for the victim. Your personal interaction with family members at the
dive site showed real compassion. Your professional demeanor was greatly
appreciated in dealing with the many family members during their emotional
trauma. Thanks for your dedication and service to our County. Cooperation is

5
the backbone of law enforcement and we truly appreciate you representing
Leelanau County.

(9) Letter from Mother to Sheriff re Grievant, 1/16/06:

Recently, I had an frightening experience with my oldest son at our home
in which your Deputy Sheriff, [Grievant] responded. I had picked my son up
from school and he appeared the same to me as he does every day I pick him up.
Within one and one half hours I needed to call 911 as I found him unresponsive
and dusky. [Grievant] was the first to respond and I found him to be quick in
getting the monitor on my son as I was cutting his clothes off. I sincerely
appreciate his efforts in helping to save my son.

Most importantly, I want to say that his follow-up in investigating the

events of the night helped to piece together a most disturbing story. First, that
my son was offered a “lemonade” at the end of the day in school by another
student and second, that he took it knowing that something wasn’t exactly right.
We are dealing with those issues with our son. The truth is important to us no
matter what the consequences. The visit that Officer [Grievant] made to my son
one week later made such an impression on my son that I felt you needed to
know. [“Son”] wasn’t angry and he actually felt that the officer cared about
what happened to him. I do think that [Son] was actually relieved with everyone
knowing the truth.

I commend the efforts of your Deputy Sheriff. I believe he saved [Son]

in more ways than one. Please let him know.

Handwritten Note to Grievant from Sheriff, in Lower Right-Hand Corner:

GREAT JOB [GRIEVANT] – Another Happy Customer!

(10) Memorandum of Commendation to Grievant from Undersheriff, 4/5/06:

I am writing to commend you on the excellent job you did on Friday,

March 31, 2006, at the scene of the overturned kayak complaint in Lake
Leelanau. I am certain actions taken and quick response by yourself and Sgt.
[“Sergeant # 1”] saved the lives of [“Two Individuals”].

Nice work [Grievant]!

Under cross-examination at the arbitration hearing, the Sheriff admitted

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that he did not take the foregoing evidence into consideration. Union brief @

18. Due to the failure to consider pertinent evidence in Grievant’s favor, and for

the other reasons explained below, the grievance is SUSTAINED.

II. No Names

Because this case is permeated by hearsay, unsubstantiated allegations,

insinuations, rumors and innuendo (not to mention possible libel and slander),

no one is mentioned by name. Union brief @ 15 (“unsubstantiated allegations,

innuendo and hearsay”). There are intimations about practically everything and

proof of virtually nothing. The names of all persons involved are cross-

referenced to exhibits in the Appendix, should further proceedings take place in

a different forum.

III. The Charges Against Grievant

The charges against Grievant were laid out in a letter to him from the

Sheriff, dated April 19, 2006 (Ex 9 or “Charges”) and presented to him that

same day:

As you know, you were placed on an administrative leave pending an

internal investigation of your recent activities involving a criminal
suspect. That internal investigation has concluded. You are now accused
of engaging in severe misconduct which violates your Oath of Office and
the Code of Conduct. Specifically, it is alleged that on March 18, 2006,
you did not arrest a suspect, [“Miss Demeanor”], involved in a domestic
violence complaint although the elements of a crime were present along
with an admission by the suspect of wrongdoing. It is alleged you advised
your partner at the scene that you would “take the heat” for not making
an arrest. It is alleged that you failed to include in your police report any

7
information as to why an arrest was not made even though such
information is required. It is also alleged that you advised your partner,
while preparing his police report, that the victim in this incident is “an
absolute asshole,” that the suspect was getting the “raw end of the deal,”
and to “keep that taste in [his] [sic] mouth” as he prepared his report.

It is further alleged that following your initial contact with suspect

[Demeanor] on March 18, 2006, you engaged in a series of inappropriate
contacts with her, including twice appearing in court during her criminal
proceedings, home visits and telephone calls and text messages. During
the Sheriff’s Office internal investigation of your contacts with the
suspect, you stated that between March 18 and April 6, 2006, you had
about twelve (12) telephone contacts with [Demeanor] and she had
visited you four (3) [sic] times at your home. While you stated that your
contacts were to “help” suspect [Demeanor], when you were asked why
you had these contacts, you stated “I don’t know,” “I can’t recall,” and
“I’m not sure.” It is also alleged that your many contacts with suspect
[Demeanor] occurred despite your knowledge she was represented by an
attorney in the pending criminal matter.

It is also alleged that during the Sheriff’s Office internal investigation of

this matter, you gave false and incomplete answers to the investigating
officer, Undersheriff [“Undersheriff”]. During your two interviews with
Undersheriff …, it is alleged that you denied having certain contacts with
suspect [Demeanor], falsely stated the number of contacts you had with
suspect [Demeanor], and denied referring her to a parole officer (until
you were confronted with certain facts). During your interview, you
consistently avoided questions dealing with the substance of your
contacts with the suspect.

Further, it is alleged that while the Sheriff’s Office was conducting the
internal investigation, you were discovered to have made a remark to a
dispatcher about using his tongue all night on his partner. When
questioned about this remark, you stated that you did not know what you
meant by your remark. You then stated you should not have made this
statement.

The purpose of this letter is to afford you an opportunity to respond to

these charges. They are of a most serious nature. You are to be in my

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 office on April 19, 2006, at 2:00 p.m., and you will have your union
representative present.

Following the meeting just mentioned, Grievant was terminated by letter

to him from the Sheriff, dated that very day (Jx 10 or “Determination”). The

resulting grievance was denied (Jx 2), and the Union demanded arbitration. A

hearing was held before the arbitrator on January 9, 2007, at the Courthouse in

Leland, Michigan, where both parties were represented by counsel. Briefs were

postmarked by February 9, 2007, as agreed.

IV. The Collective Bargaining Agreement And Other Exhibits

Management Rights are described in Article IV of the collective

bargaining agreement (Jx 1 or “CBA”), and include the right “to suspend,

demote, discharge non-probationary employees for just cause … .” § 4.1. The

just cause limitation is echoed in § 15.1 (“No seniority employee shall be

discharged or otherwise disciplined except for just cause.”).

The arbitrator’s role is defined in Article V, §§ 5.9 & 5.10:

The Arbitrator shall have no power to substitute his judgment for that of
the County. … The Arbitrator’s powers shall be limited to the application
and interpretation of this Agreement as written. The Arbitrator shall be at
all times governed wholly by the terms of this Agreement, and he shall
have no power or authority to amend, alter, or modify this Agreement in
any respect. By accepting a case from the parties, the Arbitrator
acknowledges his limitation of authority and agrees not to decide an issue
which is outside of his jurisdiction under this Agreement.1 The Arbitrator
1
Since an arbitrator rarely even sees the CBA before the arbitration hearing and usually does not have an
opportunity to peruse it until after the hearing has been completed—as in the instant case—this provision probably
is not binding. (Footnote by arbitrator.)

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 shall not imply obligations or conditions binding upon the County from
this Agreement, it being understood that any matter not specifically set
forth herein remains with the reserved rights of the County. The
Arbitrator shall have no power to substitute his/her discretion for the
counties [sic] in cases where the County is given discretion by this
Agreement. However, the Arbitrator shall be empowered to return an
employee to full duty if his decision is to make the employee whole. The
Arbitrator shall have no power to interpret any state or federal law or
state or federal administrative rule or regulation.

The last sentence, while not unheard of in the collective bargaining arena, e.g.,

Magic Chef, 88 LA 1046, 1047 (Caraway Arb 1987), is most puzzling in the

present context, in light of the numerous legal references throughout the exhibits

and briefs before the arbitrator.

The CBA itself contains the following references to state or federal laws,

rules, or regulations; this list may not be comprehensive:

§ § 0.5—It shall be the joint concern of the Sheriff and the Union to afford
equal employment and advancement opportunity to all qualified
individuals regardless of their race, color, sex, religion, age, national
origin, physical or mental handicap, Vietnam Era or Disabled Veteran
Status, and to conform to all applicable laws and regulations. (Emphasis
supplied.)

§ § 1.1—Act 335 of the Public Acts of 1947, as amended by Act 379 of the
Public Acts of 1965.

§ § 4.1—by statute or law.

§ § 5.8—under [Federal Mediation and Conciliation Service’s] rules.

§ § 5.17—Election of Remedies. The Union agrees to limit its

representation of employees, covered by this Agreement, in matters
involving grievances, to one proceeding related to each such grievance,
whether that proceeding involves a grievance arbitration, which the

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 Union shall determine in its sole discretion, veteran’s preference hearing,
civil rights claim, or other claim before another tribunal or court, unless
the additional proceeding involves an unfair labor practice charge before
the Michigan Employees’ Relations Commission. (Emphasis supplied.)

§ § 11.7—FMLA [Family and Medical Leave Act] or subject to applicable

COBRA [Consolidated Omnibus Budget Reconciliation Act] regulations.

§ § 27.1—M.E.R.S. [Municipal Employees’ Retirement System of

Michigan, MCL 38.1501 et seq.].

§ § 27.2—Social Security.

The Domestic Violence Policy and Procedure (Ex 2) which Grievant is

charged with violating contains references to MCL 764.15A, 764.15C, 750.81

and 750.81A. The specific portion of this Policy and Procedure involved here is

¶ B.3 on Page 4:

Reminder – Officer must fully document his/her response to every

domestic violence call on a standard incident report regardless of whether
or not a crime has been committed or an arrest has been made. In those
instances where probable cause exists and no arrest has been made, the
officer must document his/her reason for not making an arrest.

The Code of Conduct (Ex 7 or “Code”) which Grievant is charged with

violating similarly contains legal references:

§ ¶ 4—the rules and regulations of the Federal Communications

Commission.

§ ¶ 10—in accordance with the law and with due regard for the rights of
citizens.

It should be noted that, although the Code is at least 10 pages long and contains

at least 75 numbered paragraphs, Ex 7 consists of only Pages 1, 2, 9 and 10 and

11
includes only paragraphs 1-16 and 69-75, the last paragraph containing at least

19 subparagraphs.2 Thus the full Code well may contain other legal references.

The specific provisions of this Code which Grievant allegedly violated

are not identified in either the Charges or in the Determination. In the Employer

brief @ 3 the following are set forth as having been transgressed:

10. Officers of the Department shall use their powers to arrest strictly
in accordance with the law and with due regard for the rights of
citizens.

12. No employee shall solicit or accept personal gain gratuities, loans,

material reward benefit, or services from any individual or
organization that could personally benefit or compromise
effectiveness in performing his/her duties. Employees may not use
their office to obtain personal or financial gain or privilege.

75. Disciplinary Offenses – It is not feasible to itemize every offense,

or act, for which disciplinary action may be necessary. An officer
of the Department may be cited for violation of any of the Rules
and Regulations, or the provisions of any Departmental order, or
for any of the following offenses:

(a) Willful disobedience of the Rules and Regulations or a

negligent disregard there of.

(c) Refusing to obey the lawful command of a superior.

(h) Conduct on/off duty that shall be prejudicial to the

reputation and good name of the Department.

(k) Making a false statement, falsifying any written or verbal

report made in connection with official departmental

2
In response to the arbitrator’s email 2/2/07 sent to all counsel, in the cover letter to the Employer brief, the
Employer’s counsel explained: “You also questioned whether you were suppose to get the full Code of Conduct
(Employer Exhibit 7). Our exhibit was intended to only have the pages for the rules that were violated, not the
entire Code.”

12
 matters, or willfully, intentionally and without authority
withholding material matter from such report or statement.

(m) Officers are prohibiting from affiliating, associating or

keeping company with any person(s) whose conduct or
reputation is of such a nature as would bring discredit to the
Department.

Finally, the Leelanau County Sheriff’s Office Oath of Deputy Sheriff (Ex

8 or “Oath”), which Grievant also is charged with violating, contains broad

constitutional references:

I do solemnly swear (or affirm) that I will support the Constitution of the
United States and the State of Michigan. I will faithfully discharge the
duties of DEPUTY SHERIFF in and for the County of Leelanau, State of
Michigan. I will place “Service above Self” and dedicate my abilities to
serving all citizens in the highest standard. I shall enforce all laws
without prejudice and be loyal to the Office of Sheriff. I will obey and
respect all requirements that govern my professional conduct as an
appointed “DEPUTY of the SHERIFF”. (Emphasis supplied.)

The Sheriff testified that he himself drafted the Oath.

Not surprisingly, the briefs of both parties are replete with general and

specific legal references, over and above those contained in the foregoing

exhibits. See, for example, Union brief @ 3 (“MCL 750.81(2)”), @ 4

(“constitutionally protected rights”), @ 5 (“MCR 3.200 et seq.”), @ 12 (“state

Law”); Employer brief @ 6 (“the laws of the State of Michigan”), @ 29

(“Fourth Amendment”), @ 29 n 5 (“Mich Const 1963, Art 7, ¶ 4; MCL

168.200”), @ 30 (“Mich Const 1963, art. 1, § 11”). Bolstering these general

references and specific citations are state and federal case law and arbitral

13
opinions.

Given these numerous constitutional, statutory and regulatory references

and citations in the Oath and Code which Grievant is charged with violating, not

to mention those in the CBA itself, and still others addressed by the parties in

their extensive legal arguments, it is unclear how an arbitrator could refrain

from interpreting “any state or federal law or state or federal administrative rule

or regulation,” certainly not in this arbitration.

A hornbook principle of contract interpretation is that the document

should be read as a whole and its parts should be given a harmonious meaning.

Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003) @ 462-

464; Hill & Sinicropi, Evidence in Arbitration (BNA 2nd ed 1987) @ 354-355.

In an effort to achieve a complete and harmonious interpretation, the arbitrator

acts pursuant to the express power granted to him under CBA § 5.10, to

interpret and apply the CBA, and concludes that the limitation on interpretation

of “any state or federal law or state or federal administrative rule or regulation”

is restricted to those cases in which no such legal issue is raised directly or

indirectly by either party. See Ingalls Shipbuilding Corp, 54 LA 484, 485-487

(Boothe Arb 1971) (waiver of contractual provision).

Any other interpretation could lead to a multiplicity of proceedings in any

case in which a grievant had both a contract claim and a statutory claim arising

14
out of the same factual situation. The aggrieved could proceed to arbitration

and, if dissatisfied with the outcome, could then repair to court for a second bite

at the apple, on the ground that the arbitrator had no jurisdiction to hear his

statutory claim.3 Consider the following concrete example of a highly pertinent

legal issue which could lead to multiple proceedings.

The Oath is nowhere mentioned in the CBA; at least the arbitrator has

been unable to find such a reference, and neither party has brought one to his

attention. The Oath, very much at issue here, is thus entirely a constitutional and

statutory creation. All charges against Grievant which arose from his alleged

violation of his Oath could be dismissed on the ground that the Oath violates the

plain language of the State Constitution:

All officers, legislative, executive and judicial, before entering upon

the duties of their respective offices, shall take and subscribe the
following oath or affirmation: I do solemnly swear (or affirm) that I
will support the Constitution of the United States and the constitution
of this state, and that I will faithfully discharge the duties of the office
of .......... according to the best of my ability. No other oath,
affirmation, or any religious test shall be required as a qualification
for any office or public trust. Mich Const 1963, Art XI, § 1; emphasis
supplied.

MCL 51.73 in turn provides:

3
In federal sector arbitration, it is common to combine contractual and statutory claims. See, e.g., United States
Marine Corps, 110 LA 955, 98 FLRR 2-1125, LAIRS 22246 (Arb 1998); exceptions den, 54 FLRA 1494, 98
FLRR 1-1206; cited in Elkouri & Elkouri, supra, @ 516 n 106. Following the expansion of arbitral jurisdiction in
Gilmer v Interstate/Johnson Lane Corp, 500 US 20 (1991) (Age Discrimination in Employment Act claim
encompassed by arbitration clause), the holding in Alexander v Gardner-Denver Co, 415 US 36 (1974) (arbitral
authority limited in conflict between collective bargaining agreement and statute), may be slowly eroded, if not
overruled. See generally Elkouri & Elkouri, supra, Ch 10.

15
 Every appointment of an under sheriff, or of a deputy sheriff, and
every revocation thereof, shall be in writing under the hand of the
sheriff, and shall be filed and recorded in the office of the clerk of the
county;4 and every such under sheriff or deputy shall, before he enters
upon the duties of his office, take the oath prescribed by the twelfth
article of the constitution of this state. …

The complier notes: “In this section, ‘the twelfth article of the constitution’

refers to the Constitution of 1835. See now Const. 1963, Art. XI, § 1.”5

The Oath which Grievant is accused of violating is far broader than the

Michigan Constitution permits. It is, therefore, invalid, and disciplining

Grievant for violating the invalid Oath cannot be upheld. However, rather than

risk providing an opening for a challenge to this opinion, the arbitrator sustains

the grievance on the narrow ground that the Employer has not borne the burden

of proving that Grievant was terminated for just cause. Employer brief @ 2

states the “Issue Presented” as “Whether the Grievant’s termination violated the

labor contract,” a question which the arbitrator answers in the affirmative. In the

end, constitutional and statutory issues may not matter, inasmuch as the

Undersheriff conceded that he could not find any law which Grievant violated.

V. The Burden Of Proof

The burden of proof in a discharge case weighs heavily upon the

employer. Elkouri & Elkouri, supra, @ 349, 949; Hill & Sinicropi, supra, @
4
No proof of compliance with this constitutional provision regarding revocation has been presented to the
arbitrator. In the event of noncompliance, Grievant may not have been officially terminated. (Footnote by
arbitrator.)
5
http://www.legislature.mi.gov/(S(lphsk42vvu115ibkyodp1vy2))/mileg.aspx?page=getObject&objectName=
mcl-51-73.

16
39-41. Although there is no agreement as to the standard of proof, which can

vary according to the nature of the charges, Elkouri & Elkouri, supra, @ 949-

953; Hill & Sinicropi, supra, @ 32-39, in this case the Employer failed to meet

even the lowest standard of preponderance of the evidence.

VI. The Undersheriff’s Internal Investigation Into Grievant’s Conduct

Grievant was fired as a result of an internal investigation into his conduct

by the Undersheriff, which began when the latter was contacted on March 30,

2006, by a neighbor of Miss Demeanor (“Neighbor”), who had received an

email from her in which the she had written, “[M]y arresting officer asked me

out! Ha! Ha! Think I’ll have as much luck with the judge?” Ex 1 @ 1. The

judge will be referred to as the “District Judge”. At the Undersheriff’s request,

the Neighbor forwarded Miss Demeanor’s email to him.

The Undersheriff’s 11-page report of his investigation (Ex 1 or “Report”)

recites:

Based on that information I reviewed the incident report6 and noted that
Deputy [Grievant] and Deputy [“Jr. Deputy”] are the investigating
officers. This complaint occurred in the early morning hours of March
18, 2006 and was reported as an assault and battery and malicious
destruction of property.

During the investigation the reporting person/victim, [“Complainant”],

told officers that he had been assaulted by his ex-girlfriend [Miss
Demeanor]. [Complainant] said he had been struck twice in the face by
[Demeanor] while on the street outside the Lucky Duck Tavern in

6
Jx 3, often called a police report. (Footnote by arbitrator.)

17
 Suttons Bay.

Deputies [Grievant] and [Jr. Deputy] then went to the suspect’s residence
on Richter Road where they interviewed [Demeanor] about her
involvement in this matter. [Demeanor] acknowledged being
[Complainant]’s ex-girlfriend and being present at the Lucky Duck that
evening. When questioned about the assault [Demeanor] stated “I socked
him in the face”.

Deputies [Grievant] and [Jr. Deputy] did not arrest [Miss Demeanor] that
evening. The police report does not include the deputies’ reason for
failing to make the arrest. Department Policy and State law indicate that
if probable cause exists and an arrest is not made the investigating officer
needs to explain in writing the reason for not making an arrest.

The information about the failure to arrest [Miss Demeanor] and her
statements to [Neighbor] led me to believe that an investigation into this
matter and the officer’s conduct was appropriate. Ex 1 @ 1; emphasis
supplied.

Union counsel objected to introduction of the Report on hearsay grounds.

Elkouri & Elkouri, supra, @ 366-368. The arbitrator accepted the Report as

evidence of the basis for the decision to terminate Grievant. As pointed out in

Hill & Sinicropi, supra, @ 143, absent admissibility for that limited purpose, an

employer would be hard pressed to mount a just cause case. However, where as

here an employer fails to support an investigative report with solid evidence, the

report may fail to carry persuasive weight. Elkouri & Elkouri, supra, @ 349 & n

45.

Although the Report states that “[a] copy of the entire e-mail will be

attached to this report,” none was attached to Ex 1. In an email to all counsel

18
sent February 8, 2007, the arbitrator requested a copy of Miss Demeanor’s

precipitating email, which Employer counsel submitted with the brief. The

email states:

[Complainant] cannot drop the charges, it is now The State of Michigan

vs. [Demeanor]. I am hoping to only get probation…we will see. The
booking was humiliating. Although my arresting officer asked me out!
haha Think I’ll have as much luck with the judge? The police came to me
the following day hoping I was mad enough at [Complainant] to start
talking about his habits. This is a quote from the police….they asked me
if I knew a [Neighbor] that was [Complainant]’s old girlfriend…they
asked me if I knew another one also involved….I told them I knew who
you were and they asked me if there was anything I wanted to tell
them….I told them nothing, told them I knew nothing and I also told
[Complainant] to watch his every move. He just got pissed at me and all I
wanted to was to warn him. you know…“ Oh @%#* them, they don’t
know anything!” This is why I was going to call you…just becareful,
they are watching everyone, they are watching you, watching
[Complainant] and others. You have children my age and I would hate to
have anything happen to you. I’m not preaching, I am not innocent but I
never touched the stuff until I met [Complainant]… It is dangerous for
the simple fact how much trouble you can get into. I hope I am not
alarming you but I felt like you should know. Take care and thanks for
the kind words. This will take me a long time to get through and you
didn’t have to respond to my nasty email but you did and that shows what
type of person you are…thanks [Neighbor]. [Miss Demeanor] (Ellipses
in original.)

The Report also refers to an important time line. By letter dated January

11, 2007, directed to all counsel, the arbitrator made the following request:

There is a reference on page 6 of Employer Exhibit 1 to “the time line of

[Demeanor]’s arrest, arraignment, and guilty plea.” Please provide me
with that time line. Also provide me with the date of her sentencing and
describe the sentence imposed.

Employer counsel responded with this time line accompanying the brief

19
(“Timeline”):

TIMELINE OF [DEMEANOR]’S
ARREST TO SENTENCING

3-18-2006 Domestic Assault (3: 13 am)

3-24-2006 Arraignment, booked and released on bond

3-31-2006 Pleads guilty to misdemeanor assault

4-21-2006 Sentencing
- Received a deferred sentence, one year probation, and $345.00 in
fines and costs

For the arbitrator to critique the Report paragraph by paragraph would

extend this lengthy opinion inordinately and would not serve arbitration’s goal

of resolving disputes in an expeditious and relatively inexpensive fashion. Thus

he limits his remarks to pointing out certain deficiencies in the Report, the

Charges, the Determination, and the evidence.

VII. Shortcomings In The Report, Charges, Determination, And Evidence

VII.A. The Employer Failed To Prove

That Grievant Asked The Accused For A Date

Grievant was fired for not arresting Miss Demeanor. The evidence

before the arbitrator does not reveal the identity of the “arresting officer” to

whom she referred in her email to Neighbor. Indeed, neither the police agency

nor the police officers to whom she refers (“The police came to me the

following day … .”) are identified. Based upon the evidence before the

20
arbitrator, she may have been referring to Sheriff’s officers or to officers from

the Traverse Narcotics Team. Despite the title of the Employer’s Timeline

including the word “arrest”, that word does not appear in the body of the

document. The facts were never established.

While the Employer brief contains allegations that Grievant asked Miss

Demeanor out, e.g., brief @ 24 (“The Grievant asked her to go on a date (‘four

wheeling’) with him.”), all that was proved was that Grievant made some

suggestion to the effect that maybe they could go four wheeling “[w]hen this is

over.” Report @ 2. The Employer really seems to understand this, as earlier in

the brief @ 8 appears the following:

During his conversation with [Demeanor], [Grievant] told her that

perhaps the two of them ([Grievant] and [Demeanor]) could go “four
wheeling together” when “this is all over.” Check quotes. [sic] EX 1.

In the end, Miss Demeanor flatly denied that Grievant or any police officer had

asked her out. Report @ 10.

VII.B. The Employer Failed To Prove

That Grievant Initiated Personal Contacts With The Accused

The Employer alleges that Grievant had at least six “personal contacts”

with Miss Demeanor but seems to overlook the circumstances under which they

occurred. It seems quite clear from the Employer brief itself that she was the one

contacting Grievant. The first alleged contact occurred later in the morning of

the original incident, March 18, 2006:

21
 Approximately seven (7) hours after [Grievant]’s initial contact with
[Demeanor], [Demeanor] telephoned [Grievant] on his cell phone. EX 6.
[Grievant] made personal contact with [Demeanor] later that morning. A
Michigan conservation officer, [“Conservation Officer”], was with
[Grievant] at this time. … Employer brief @ 8; emphasis supplied.

The contact was not initiated by Grievant, and it hardly was “personal”. More

about this contact later.

The dates of 5 of the 6 alleged contacts are documented, and for future

reference, the contacts will be referred to as follows:

3-18-06 initial contact just described: “Hillside Feed contact” because it

took place there. Report @ 4.

3-24-06 arraignment of Miss Demeanor at courthouse: “arraignment

contact”.

3-28-06 at Grievant’s residence: “hug contact” because Miss Demeanor

allegedly hugged Grievant there.

3-31-06 at courthouse Miss Demeanor pleaded guilty: “plea contact”.

4-3-06 at Grievant’s residence: “post-interview contact”. Report @ 9.

undated contact at Grievant’s residence: “undated contact”.

It is clear from the Employer brief that she went to his residence in each

instance of alleged contact there. Brief @ 8 (“three (3) visits by [Demeanor] to

[Grievant]’s residence.”), @ 20 (“her visits to his home”), @ 24 (“at his

home”).

The Employer asserts that Grievant was not forthcoming about the

arraignment and plea contacts when first questioned about personal contacts

22
with Miss Demeanor. Employer brief @ 14. Grievant explained that he

understood the question to refer to instances when he was not in uniform, which

is reasonable in the context of the Employer’s attempts to establish social ties

between the two. Report @ 9 (“off duty contacts”). It is undisputed that

Grievant was in uniform at the times of the arraignment and plea contacts.

Furthermore, Miss Demeanor’s attorney was present on at least one of these

occasions. Report @ 6, Employer brief @ 8.

VII.C. The Employer Failed To Prove

That Grievant And The Accused Embraced Romantically

The Employer makes repeated accusations that Grievant and Miss

Demeanor hugged each other:

On one of those occasions, [Grievant] and [Demeanor] were observed

hugging each other outside of [Grievant]’s house. Employer brief @ 8.

Deputy [# 3] had observed [Demeanor] at [Grievant]’s home on March

28, 2006. He saw the two hug outside of [Grievant]’s residence.
[Undersheriff] directed [“Deputy # 3”] to put this statement in writing,
which he did. EX 4. Employer brief @ 10.

The Employer stretches so far as to label their conduct as “public embracing”

(Employer brief @ 20) despite the fact that it took place in the truly romantic

setting of Grievant’s pole barn where Deputy # 3 had stored some belongings

(Ex 4).

The Employer is correct that Deputy # 3 put his observations in writing,

but his description rather differs from the Employer’s:

23
 I observed [Demeanor] hug Deputy [Grievant] and thank him for all his
help. Ex 4, emphasis supplied.

The description is one of her hugging him as an expression of gratitude for his

assistance. This was hardly a torrid lovers’ embrace. The hug contact is devoid

of legal significance.

VII.D. The Employer Failed To Prove

That Grievant Had A Romantic Relationship With The Accused

Both Grievant and Miss Demeanor told consistent stories about the

nature of their relationship, namely, that he was helping her through a difficult

time. Here are a few of her statements as described in the Report:

“I never could have made it through these past two weeks without
[Grievant].” Report @ 2.

[Demeanor] talked about how terrible the ordeal of going through the
criminal justice system has been for her and how [Grievant] has
supported and helped her out during that time. Report @ 2.

She also referred to their relationship as the “beginning of a friendship”.

Report @ 2.

The questioning about the nature of their relationship seemed tepid, both

during the investigation and at the arbitration hearing.7 The Employer

established nothing of substance, most assuredly nothing illicit. As a result, the

Employer in its brief @ 8 was forced to concede that “only they know.”

7
Cf. the penetrating question posed by Detective Susan Avery, played by actress Whoopi Goldberg, in director
Robert Altman’s 1992 film, The Player: “Did you f… her?” In the instant case, the interrogators merely beat
around the bush.

24
 VII.E. The Employer Failed To Prove
That Grievant Attempted To Influence The Criminal Case Improperly

In addition to allegedly consorting with Miss Demeanor, Grievant was

charged with attempting to influence the Jr. Deputy’s report (Jx 3):

[Grievant] also tried to “steer” the criminal case even before the matter
was submitted to the Prosecutor’s Office. At about 9:45 p.m. on March
18, 2006 (the day of the assault), [Grievant] telephoned [Jr. Deputy] at
the Sheriff’s Office. … This conversation was on a recorded line.
Employer brief @ 9; emphasis in original.

It was during this auditory review that [Undersheriff] discovered the

telephone call from [Grievant] to [Jr. Deputy] … . Employer brief @ 12.

These singularly serious charges are founded upon a gross misconception

of the facts. The whole case seems slanted to portray Grievant as the actor,

when in fact it is others who approached him:

… I [i.e., the Undersheriff] listened to taped calls from the squad room at
the Leelanau Sheriff’s Office that occurred on 03-18-06. At about 9:44
that evening Deputy [Jr. Deputy] telephoned [Grievant] at home. They
discussed the case and paperwork relating to it. During the conversation
[Grievant] referred to [Complainant] as an “absolute asshole” and told
[Jr. Deputy] that [Miss Demeanor] was getting the “raw end of this deal”.
[Grievant] then said “Keep that taste in your mouth while you are doing
your report”. Report @ 7; emphasis supplied.

While the Conservation Officer did not use such descriptive language at the

hearing, he did describe Complainant as “violent”.

Regardless of the arbitrator’s authority to interpret the law, Grievant

enjoys certain First Amendment rights, especially when called at home, at night.

The arbitration treatise explains:

25
 The First Amendment guarantees of freedom of speech … are all
operative … through the Fourteenth Amendment, when the state or a
municipality is the employer. Counterpart state constitutional provisions,8
which may be interpreted more broadly, provide an additional layer of
protection against offensive state and municipal personnel actions.

[W]hen arbitrating an employment dispute arising in the public sector,

arbitrators, as a threshold inquiry, will also determine if the constitutional
rights of a public-sector employee have been violated by his or her
employer. … Elkouri & Elkouri, supra, @ 1252.

Before the arbitrator, Grievant testified that he felt that allegations of

domestic violence too often are misused. The fact that Complainant himself

called the Prosecutor’s Office three (3) times in an effort to retract the charges

against Miss Demeanor gives credence to Grievant’s views. For extended

discussions of the abuse of domestic violence allegations, see generally the

work of Dr. Stephen Baskerville, Professor of Political Science at Howard

University, www.stephenbaskerville.net. The arbitrator finds that Grievant was

merely expressing a personal opinion to the Jr. Deputy when the latter called the

former at home, as Grievant was entitled to do.

Concern over Grievant’s conduct seems misguided. Consider, for

example, the following paragraph from page 6 of the Report; the individual

expressing the concern is variously described as “the domestic violence

prosecutor in the Leelanau County Prosecutor’s Office” (Report @ 3) and

“Assistant Prosecutor” (Report @ 6). When she signed the subpoena discussed

8
In this case Mich Const 1963, Art I, § 5 (speech), §17 (due process). (Footnote by arbitrator.)

26
infra (Ex 6), she used the title “Special Assistant Attorney General”, so

hereinafter she will be referred to as “SAAG”. Her concerns:

[SAAG] also said that she was concerned about a possible violation of
[Miss Demeanor]’s constitutional rights relating to [Grievant]’s
continued contact with her after she retained legal counsel. We discussed
the time line of [Demeanor]’s arrest, arraignment, and guilty plea.
[SAAG] remembered seeing [Grievant] talking with [Miss Demeanor]
and her attorney outside the courthouse at one of the court appearances.
A check of Deputy [Grievant]’s dailies reveals that he was present at the
courthouse on both court appearance days at the time that [Demeanor]
was in court. (Emphasis supplied.)

This is pure innuendo. It was the responsibility of Miss Demeanor’s

attorney to protect his client’s interests, not SAAG’s. Report @ 9. Obviously,

the attorney had no problem with contacts between Grievant and his client.

There is no record whatsoever of any complaint lodged against Grievant by

Miss Demeanor or by her attorney. It is indeed difficult not to wonder what all

the fuss was about, especially in a misdemeanor case in which the accused

seems to have confessed her guilt to everyone who would listen.

All doubt about Grievant jeopardizing the prosecution of Miss Demeanor

was removed at the arbitration hearing, when the Undersheriff conceded with a

sigh that Grievant’s conduct did not compromise the case—she pleaded

guilty—a fact reiterated in the Employer brief @ 23 (“… Grievant’s

misconduct, in the end, did not result in an adverse impact upon the criminal

case”). Although the arbitrator does not subscribe to a no-harm-no-foul rule,

27
such as when an assailant shoots and misses, there simply is no evidence that

Grievant caused any harm to anyone. Quite to the contrary as will be seen, his

actions appear to have resulted in the successful prosecution of the Complainant

on poaching charges.

VII.F. The Evidence Supports Grievant’s Contention That

He Was Gathering Information About Complainant’s Criminal Activities

The Employer insists that Grievant’s alibi of investigating the

Complainant’s drug activities was a fabrication concocted for arbitration:

At no time prior to, or at, this meeting [April 19, 2006] did the Grievant
say anything about conducting a criminal investigation on the side with
[Demeanor] concerning [Complainant]’s alleged drug activities. Nor had
Grievant made any reports concerning this alleged conduct. … Employer
brief @ 19.

The Employer goes on the call Grievant’s story a “`drug investigation´ fable”.

Employer brief @ 28.

There is ample evidence to support Grievant’s explanation of the reason

behind his contacts with Miss Demeanor. The Employer has documented the

fact that, within a matter of hours after the original incident, Grievant and the

Conservation Officer met with her (as usual, at her request), to assist her in

retrieving a four wheeler from the Complainant’s residence. Report @ 4,

Employer brief @ 8. During that meeting at Hill Feed, the two officers

interrogated her about Complainant.

According to the Conservation Officer, who testified at the arbitration

28
hearing on Grievant’s behalf, the information obtained (including the specific

location of a purloined turkey) led to Complainant’s conviction for poaching.

The Conservation Officer further testified that he turned over to narcotics

investigators drug information gleaned from Miss Demeanor, who stated in her

precipitating email, “The police came to me the following day hoping I was

mad enough at [Complainant] to start talking about his habits.” Far from being

harmful to the criminal case against Miss Demeanor, Grievant’s contacts with

her uncovered information valuable to law enforcement. Report @ 6.

True, there is a putative rule against consorting with criminals (Code, ¶

75(m)), but it seems to be honored in the breach. The Sheriff himself lauded

Grievant for the latter’s “knowledge of this individual (and associates)”, the

very individual in whose possession TNT officials found 27 bricks of marijuana

worth $40,000. Under cross-examination, the Undersheriff admitted that he

never told Grievant not to have contact with Miss Demeanor. “Know the

enemy” is a maxim of warfare.9 By hanging out with Miss Demeanor, Grievant

obtained information about the Complainant’s drug use and poaching. Report

@ 4, 6.

Not only are there doubts about uniform enforcement of Code, ¶ 75(m),

9
“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know
yourself but not your enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy
nor yourself, you will succumb in every battle.” From Sun Tzu’s Art of War,
http://maorinews.com/writings/poems/artofwar.htm.

29
but there are grave doubts about its very constitutionality. The Employer cites

the lengthy case of Sponick v Detroit Police Dept, 49 Mich App 162 (1973),

which evolved out of a gambling probe of the notorious Anchor Bar in Detroit.

Employer brief @ 23. The Court of Appeals invalidated on various

constitutional grounds (e.g, vagueness, overbreadth, freedom of speech,

freedom of association) the Detroit Police rules directly comparable to Code, ¶¶

75(h) and (m).

Headnote 6 from Sponick virtually describes the relationship between

Grievant and Miss Demeanor:

A rule of the Detroit Police Department proscribing knowing and

intentional association, except in the line of duty, with persons convicted,
charged, or suspected of any crime other than traffic offenses and
municipal ordinance violations is constitutionally infirm because some of
the associations proscribed have no possible bearing on the integrity of a
police officer and that of his department, have no possible bearing on the
public's confidence in the police and unnecessarily restrict police officers'
fundamental right to associate freely, since the regulation not only
proscribes associations with persons recently convicted or currently
suspected of some crime but also proscribes a police officer's …
befriending a recently convicted individual and helping him become a
productive citizen, which could not possibly impugn a police officer's
integrity … .

It should be noted that the rules invalidated in Sponick were far more carefully

drawn than those in the Code here. See also Headnote 14 regarding due process

and the right of an accused to confront witnesses against him. Crawford v

Washington, 541 US 36 (2004); Davis v Washington, 126 S Ct 2266 (2006).

30
 During the Conservation Officer’s testimony, he pointed out that

Grievant is misquoted in the Report, where it is asserted that Grievant

commented about Miss Demeanor, “She’s hot.” Report @ 6. The Conservation

Officer testified that he is the one who used such a phrase to advise Grievant to

the effect, “If you think she’s hot, then wait six months until she gets over her

breakup with Complainant.” The arbitrator credits the Conservation Officer’s

testimony and believes that he gave Grievant sound advice.

VII.G. The Internal Investigation Was Not Full And Fair

The Union attacks the Sheriff’s internal investigation and defends

Grievant with these words:

The investigation report was unfortunately prepared by an individual with

an agenda. The agenda was to substantiate the discharge of Deputy
[Grievant]. This is why the employer failed to produce any of the
individuals that they claimed to have “interviewed” during the course of
this “investigation.” They failed to provide or make available any of the
individuals allegedly interviewed in connection with this investigation,
therefore, the accuracy of statements and context in which statements
were made cannot be verified. Why would the County not make them
available? Simple, they did not want the arbitrator to hear the whole truth.

The investigation report is a biased, self serving document that does not
reflect a fair and objective investigation. The employer has spun the
information and omitted relevant facts in order validate their actions.
They have attempted to show Deputy [Grievant]’s conduct as somehow
nefarious. Please keep in mind Ms. [Demeanor] was under investigation
and later charged with a misdemeanor. Union brief @ 17-18, emphasis
in original.

The arbitrator must agree. He, too, got the impression that Grievant’s fate

31
was sealed even before the internal investigation began. Although two officers

responded to the initial call on March 18, Grievant and Jr. Deputy, and although

the Report on the very first page notes the “deputies′” failure to follow

“Department Policy and State law”, nevertheless the investigation was directed

toward Grievant alone. Report @ 1 (“the officer’s conduct”). The Jr. Deputy’s

own signed statement, dated 4/7/2006 (Ex 3), reveals that he—not Grievant—

was in charge of the complaint on March 18.

The Jr. Deputy’s responsibility is further documented by the incident

report which lists him as its author. Jx 3 @ 1 (“Officer”). While Grievant did

contribute to the report, his portion is characterized by the Jr. Deputy as a mere

“supplement”. Jx 3 @ 2 (“WITNESS /”). If the Domestic Violence Policy and

Procedure (Ex 2) was violated by the failure to document the reason for not

arresting Miss Demeanor, then at the very least, both officers were culpable, and

the Jr. Deputy the more so, because he was in charge. Yet Grievant was fired

and the Jr. Deputy only counseled—not even given a letter of reprimand.

Grievant said that he would take the heat, not the fall.

All anyone had to do was simply ask why Miss Demeanor was not

arrested. The incident report lists Complainant as 6' 2", 200 pounds and Miss

Demeanor as 5' 7", 140 pounds. Jx 3 @ 1. They no longer cohabited. Jx 3 @ 2.

She had left the scene by the time the officers arrived. The Complainant was

32
reluctant to talk about being struck in the face and was primarily concerned

about damage to his truck. Report @ 4. He was not hurt:

Mr. [Complainant] was observed to have a small cut on his jaw on the
left side of his face. Also, Mr. [Complainant] was not in need of any type
of medical care. Jx 3 @ 2.

The incident was an inconsequential ex-lovers’ quarrel. “[A] threat did not

exist.” Report @ 2. Indeed, the Complainant called the Leelanau County

Prosecutor’s Office three (3) times, requesting that the charges against Miss

Demeanor be dropped. Report @ 3.

As documented at length above, Grievant was faulted for visiting with

Miss Demeanor after the incident, yet all evidence points to the fact that she

went to his house, not vice versa. In marked contrast, Deputy # 4 received no

criticism for the following behavior:

… Deputy [“Deputy # 4”] had been present in the Suttons Bay area
between 10:00 and 11:00 A.M. on March 18 when [Conservation
Officer] and [Grievant] were talking to [Demeanor]. [Deputy # 4] also
said that he drove past [Demeanor]’s house, saw her at her mailbox and
stopped to talk with her about the situation. … Report @ 6.

Grievant was further faulted for having contact with Miss Demeanor after

she had “lawyered up”10, having retained an attorney on March 22, 2006

(Report @ 10), yet it appears that the Undersheriff met with her twice—once at

her place of employment (4/3/06, Report @ 2) and again at the Sheriff’s Office

10
Police slang for having obtained legal counsel.

33
(4/10/06, Report @ 10)—without obtaining clearance from her attorney; at least

there is no mention of such clearance in the Report or in the Employer brief, an

event which surely would have been noted had it taken place.

It is difficult to believe that any attorney representing a client in a

criminal matter would advise his client to be interviewed alone by the police

while the criminal case was pending. Miss Demeanor had already pleaded guilty

on March 31, but she was not sentenced until April 21, so her case was still

pending. Report @ 11 (“while this case remains in the court system”). During

the second meeting, Miss Demeanor described her contact with Grievant in

terms of “her contact with him”, not in terms of him contacting her. Report @

10. To the arbitrator, it’s a distinction with a great deal of difference.

Despite the arbitrator’s indication that he was not interested in sexual

shenanigans in the Sheriff’s Office, the Employer insisted upon delving into an

offhand quip that Grievant made to a male dispatcher (“Male Dispatcher”),

about the latter’s female partner (“Female Dispatcher”), an incident noted in

both the Charges and the Determination. The explanation proffered was that the

Employer had to protect against sexual harassment claims. The Report recites:

On 04-10-06, at 3:30 P.M. I [i.e., Undersheriff] met with Deputy

[Grievant] at the Leelanau Sheriff’s Office. Also present were Deputy
[“Repdep”], acting as [Grievant]’s union representative, and Sergeant
[“Sergeant # 2”]. I had summoned [Grievant] to my office for a second
investigative interview regarding internal investigation #3435.

34
 During this investigation I discovered two taped telephone conversations
which occurred on 0[3]-18-06 involving Deputy [Grievant]. The first call
takes place about 4:31 A.M. and dispatcher [Male Dispatcher] is
speaking to Deputy [Grievant] who is in the Law Enforcement squad
room. During the conversation [Male Dispatcher] asks about the blood
alcohol level regarding a person that [Grievant] had been dealing with.
During the conversation [Grievant] makes a large screaming noise into
the phone and then [Male Dispatcher] makes a comment about his ear
feeling good. [Grievant] then says, “probably not as good as your tongue
feels seeing how you’ve been using it all night long on your partner”.
[Male Dispatcher] responds with, “you gotta do what you gotta do”.

At the beginning of our interview I played a copy of that telephone call

for [Grievant], [Repdep] and [Sergeant # 2]. At the end of the recording I
asked [Grievant] what he meant by his remarks to [Male Dispatcher].
[Grievant]’s first response was “I don’t know what I meant by that”. He
said he didn’t know the context in which it was said. I asked [Grievant] if
it was common for he and [Male Dispatcher] to have sexually explicit
banter between the two of them and he said it was not. I asked [Grievant]
if he meant that [Male Dispatcher] had been performing oral sex on his
dispatch partner [Female Dispatcher] during their shift. [Grievant] said
that he did not mean that. [Grievant] said “I shouldn’t have said it.” Later
in the conversation he also said “I didn’t mean it in a sexual way”. I
asked [Grievant] how else he could have meant a remark like that and he
had no response. Report @ 7-8.

It would have been better had the arbitrator’s suggestion been heeded,

because elaboration over this playful banter between Grievant and Male

Dispatcher serves only to focus attention on just how weak is the Employer’s

justification for firing Grievant. In the brief, the Employer attempts to backtrack:

We acknowledge that this remark, in and of itself, is eclipsed by the other

misconduct in this case. Employer brief @ 27.

Hopefully the arbitrator will be excused for finding more mischief than

misconduct in the incident. Any attempt to halt this type of repartee between

35
policemen is likely to prove as successful as trying to stop them from eating

donuts.11

The exchange is mischaracterized in the Report. Although perhaps sexual

in nature in an archaic sense, the exchange was hardly sexually explicit. Any

and all sexual suggestions were implicit; specifically, the word “sex” was not

used by either of the participants. Regardless, the word “sex” no longer carries

the broad connotation it once enjoyed; today, it may be used to refer only to

sexual intercourse. See “Oral Sex Among Adolescents : Is It Sex or Is It

Abstinence?” Family Planning Perspectives, Volume 32, Number 6,

November/December 2000.

In Executive Order 869,12 President Clinton officially decreed that “oral

sex” is not sex at all, thereby reducing the phrase to oxymoron, if not utter

meaninglessness. See “When Sex Is Not Really Having Sex”, Time Magazine,

February 2, 1998. The phrase “oral sex” nowhere appears in Michigan

Compiled Laws, but see MCL 750.520a(p). Besides, there are a number of

things that a man can do with his tongue that do not involve genitalia—French-

kissing, for example. The Internet is awash with other possibilities.

Grievant’s credibility is attacked in both the Report and the Employer

brief (@ 26-27) because he could not “explain” what he meant. Such remarks

11
February 20, 2007 was Fat Tuesday, the day for paczki, which the arbitrator himself consumes copiously.
12
Fictitious, of course.

36
are spontaneous, not premeditated, and are not intended to convey deep

meaning. Rather, they are made to amuse, entertain, evoke a response, or for

some such innocuous purpose. Obviously, Grievant got precisely the type of

response he wanted but, of course, the Male Dispatcher—whose retort, if fully

explicated, was far more lewd and lascivious than Grievant’s interjection—was

not disciplined.

For the Employer to allege that Grievant’s remark constituted “sexual

harassment” is to ignore the plain language of the defining statutes:

Discrimination because of sex includes sexual harassment. Sexual

harassment means unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct or communication of a
sexual nature under the following conditions:

(i) Submission to the conduct or communication is made a term or

condition either explicitly or implicitly to obtain employment, public
accommodations or public services, education, or housing.

(ii) Submission to or rejection of the conduct or communication by an

individual is used as a factor in decisions affecting the individual's
employment, public accommodations or public services, education, or
housing.

(iii) The conduct or communication has the purpose or effect of

substantially interfering with an individual's employment, public
accommodations or public services, education, or housing, or creating an
intimidating, hostile, or offensive employment, public accommodations,
public services, educational, or housing environment. MCL 37.2103(i).

Under Radtke v Everett, 442 Mich 368 (1993), cited in Employer brief @ 27,

n4, Grievant’s conduct did not approach sexual harassment.

37
 The Employer also appeals to federal law on the subject (Employer brief

@ 27 & n 4), but that has been covered so thoroughly in Dept of Veterans

Affairs, 115 LA 198, 166 LRR 168, 02-1 ARB ¶ 3067, 101 FLRR 2-1107 (Arb

2000), cited in Elkouri & Elkouri, supra, @ 1219 n 184 & 1223 n 196; and

AFGE Local 1858 and US Army Aviation and Missile Command, 03-1 ARB ¶

3410, 103 FLRR-2 93, 103 LRP 8084 (Arb 2003), that nothing more need be

said here.

Implicit in the Employer’s allegation of sexual harassment is the

presumption that the Female Dispatcher was or would have been mortified by

Grievant’s quip. If television shows such as Sex and the City, Scrubs, and

Boston Legal (not to mention Reno 911!) accurately portray contemporary

female sexual appetites, that presumption is eminently rebuttable. See also “The

Girls Gone Wild Effect”, Newsweek Magazine, February 12, 2007, @ cover &

40-47. There is no evidence that the Female Dispatcher actually overheard

Grievant’s remark, much less that she was bothered by it. She neither was

interviewed during the investigation nor called as a witness at the arbitration

hearing, but Grievant was fired anyway.13

VIII. The Problems With Grievant’s Telephone Records

VIII.A. Their Introduction At The Arbitration Hearing

13
After the Court of Appeals’ scabrous dicta in People v Waltonen, 2006 Mich App LEXIS 3278, n 8 (2006),
deputies and dispatchers alike will want to be far more circumspect in their relationships with one another.
“Adultery could mean life, court finds”, Detroit Free Press, January 15, 2007.

38
 At the arbitration hearing, the Employer offered Grievant’s cell phone

records to prove that Grievant was untruthful about the number of telephone

contacts he had with Miss Demeanor (Employer brief @ 15-19), to which

Union counsel objected strenuously on Fourth/Fourteenth Amendment search-

and-seizure grounds. Elkouri & Elkouri, supra, @ 1269-1272. The arbitrator

accepted the records (Ex 5) as evidence of the basis of the Employer’s decision

to terminate Grievant, but directed the parties to brief the constitutional issues

raised.

After study and reflection, the arbitrator has decided to heed the advice of

Arbitrator William Feldesman and not to go down the slippery slope of search

and seizure:

[E]ven a few hours of study of the judicially-created labyrinth of search

and seizure under the Fourth Amendment is sufficient to persuade the
researcher that once he actually enters he may be forever lost unless he
can summon forth the shade of Ariadne with her clew of thread, to assist
him. Government Printing Office, 82 LA 57, 70 (Feldesman Arb 1983),
as quoted in Hill & Sinicropi, supra, @ 242.

Instead, the arbitrator bases his ruling on classical evidentiary grounds.

The reasons for this approach are two-fold: (i) A simple evidentiary

ruling can settle the matter without the necessity of reaching constitutional

issues. (ii) There is pending before the Michigan Supreme Court a case which

could profoundly affect any search-and-seizure ruling that the arbitrator might

make. See People v Earls, Order (re COA No. 267976), SC No. 132284

39
(December 15, 2006), and People v Gadomski, 2007 Mich App LEXIS 239,

n 6 (2007).

VIII.B. The Arbitrator’s Holding Re The Phone Records

The constitutional arguments are skillfully marshaled in Employer brief

@ 29-32, to which the arbitrator can add only a citation to Smith v Maryland,

442 US 735 (1979), in which the Supreme Court held that there is no reasonable

expectation of privacy in telephone records. However, the arbitrator is more

persuaded by the Union’s simpler argument, the essence of which (lack of

foundation) the arbitrator himself made at the hearing, with respect to the

records’ probative value:

The employer claims Ex. 5 contains alleged contacts between Deputy

[Grievant] and [Miss Demeanor]. However, the employer has failed to
show that these alleged contacts were actually between Ms. [Demeanor]
or Deputy [Grievant]. The employer simply provided a 14 page list of
numbers with little or no explanation. It is alleged that this document is
telephone records; however, the document contains absolutely no
telephone company information. The document contains no billing
information or their explanations regarding the reliability of the
information allegedly contained therein. It is unknown based upon this
record whether the employer is alleging that Deputy [Grievant] made
these contacts or they were contacts made by Ms. [Demeanor]. Further,
there was no evidence as to whether these were attempted contacts or
actual contacts. This document does not, in and of itself, establish any
contacts between Deputy [Grievant] and [Miss Demeanor].

The subpoena through which the records supposedly were obtained (Ex

6) requested the following:

Cellular phone records for incoming and outgoing calls for cellular phone

40
 number … registered to [Grievant] or Leelanau County Sheriff’s Office
from 3-16-06 through the present 4-11-06 or date records are printed
whichever date comes later (Emphasis supplied.)

Not even ownership of the phone was ever established; i.e., it is unclear whether

the cell phone was Grievant’s personal phone or was issued to him by the

Sheriff’s Office. The SAAG who issued the subpoena was not called to testify.

There simply is no foundation for Ex 5 on which to base factual findings about

its contents. The arbitrator therefore holds that, while the exhibit is admissible as

evidence of information on which the Employer relied, there is no foundation

for the probity of the information contained therein. MRE 105, 602, 901.

The arbitrator’s ruling with respect to the cell phone records has little

bearing on the case because the Employer brief contains statements such as the

following:

Even without the phone records, the Grievant’s misconduct, most of

which he finally was forced to admit, stands on its own as just cause for
his termination. It simply is not true to say the records materially affect
this case. Employer brief @ 28-29; emphasis supplied.

The arbitrator’s evidentiary ruling on Ex 5 does not mean that the search-and-

seizure issues in this case merit no further discussion.

VIII.C. The Search And Seizure

Miss Demeanor had pleaded guilty a week before the Undersheriff met

with SAAG on April 7, 2006. The Report states:

We discussed the possibility of a subpoena for cellular telephone records

41
 relating to the frequency of contacts between [Demeanor] and [Grievant].
[SAAG] said that she would help me in an attempt to get that
information. Report @ 6.

Domestic Violence Prosecutor [SAAG] wrote a subpoena requesting

[Grievants] cellular telephone records. …

Additional contacts may be discovered as [SAAG] receives further

telephone records. Report @ 11.

The subpoena which resulted from their meeting was captioned:

STATE OF MICHIGAN, 86th Judicial District, CASE NO. 06-7009 SM

People of the State of Michigan v [Miss Demeanor]

Although the Charge specified was Domestic Violence, there was no indication

as to its civil or criminal nature. The subpoena was issued to “… Dobson

Communications (Cellular One) 14201 Wireless Way Oklahoma City, OK

73134” four days following the meeting, on April 11, 2006.

In the conspicuous absence of any other explanation from SAAG, it

definitely appears that the sole purpose of the subpoena was to obtain records

for use against Grievant in the Undersheriff’s internal investigation. The

suggestion that SAAG “was concerned that the improper contact between

[Grievant] and [Demeanor] could itself be a constitutional violation of

[Demeanor]’s rights, possibly jeopardizing the Prosecutor’s criminal case

against her,” is belied by the fact that Miss Demeanor already had pleaded

guilty. Employer brief @ 32.

42
 The Michigan Rules of Criminal Procedure provide in pertinent part:

(B) Misdemeanor Cases. MCR 6.001-6.004, 6.006, 6.102(D) and (F),

6.106, 6.125, 6.427, 6.445(A)-(G), and the rules in subchapters 6.600-
6.800 govern matters of procedure in criminal cases cognizable in the
district courts.

(D) Civil Rules Applicable. The provisions of the rules of civil

procedure apply to cases governed by this chapter, except

(1) as otherwise provided by rule or statute,

(2) when it clearly appears that they apply to civil actions only,
or
(3) when a statute or court rule provides a like or different
procedure.

Depositions and other discovery proceedings under subchapter 2.300

may not be taken for the purposes of discovery in cases governed by
this chapter. The provisions of MCR 2.501(C) regarding the length of
notice of trial assignment do not apply in cases governed by this
chapter.

(E) Rules and Statutes Superseded. The rules in this chapter supersede
all prior court rules in this chapter and any statutory procedure
pertaining to and inconsistent with a procedure provided by a rule in
this chapter. MCR 6.001

None of the criminal rules applicable to misdemeanors authorizes the

issuance of subpoenas. The only civil rule regarding subpoenas applicable to

misdemeanors under MCR 6.001(D) is found in Subchapter 2.500 governing

Trials; Subpoenas; Juries. The cell phone records at issue were not subpoenaed

for a trial. The rule in the subchapter, MCR 2.506, provides in pertinent part:

(A)(3) A subpoena may be issued only in accordance with this rule ….

(G)(1) A subpoena may be served anywhere in Michigan in the manner

43
 provided by MCR 2.105. (Emphasis supplied.)

It therefore appears that no court rule—criminal or civil—authorized the action

taken, especially against a company located in Oklahoma.14 The Employer

offers no justification.

The Union suggests that the route utilized was taken because an

investigative subpoena could not have been obtained under MCL 767A.1 et

seq., as no felony had been committed. Union brief @ 5-6. The Union also

cites MCR 3.200 et seq. (brief @ 5), but Subchapter 3.200 appears to apply

to different types of cases:

(A) Subchapter 3.200 applies to

(1) actions for divorce, separate maintenance, the annulment of

marriage, the affirmation of marriage, paternity, family support under
MCL 552.451 et seq., the custody of minors under MCL 722.21 et
seq., and visitation with minors under MCL 722.27b, and to

(2) proceedings that are ancillary or subsequent to the actions listed in

subrule (A)(1) and that relate to

(a) the custody of minors,

(b) visitation with minors, or
(c) the support of minors and spouses or former spouses.

MCR 3.201.

In defense of use of the phone records, the Employer takes the

14
The rules for subpoenaing witnesses and records located in another state are complex and vary from state to
state. See Victoria C. Fitlow, “How to Take an Out-of-State Deposition”, Utah Bar Journal (Feb/Mar 2001),
discussing, inter alia, the rules in Michigan (MCL 600.1852, MCR 2.305(E)) and Oklahoma.

44
position that “the Prosecutor did it” (brief @ 29, 32), but such a defense may

be unavailing under Smith, supra:

In this case, the pen register was installed, and the numbers dialed were
recorded, by the telephone company. Tr. 73-74. The telephone company,
however, acted at police request. Id., at 73, 75. In view of this,
respondent appears to concede that the company is to be deemed an
"agent" of the police for purposes of this case, so as to render the
installation and use of the pen register "state action" under the Fourth and
Fourteenth Amendments. We may assume that "state action" was present
here. 442 US @ 739, n 4; emphasis supplied.

Whatever was done in this case was done at the behest of the Sheriff’s

Department.

VIII.D. The Implications For Future Arbitrations

While the arbitrator’s evidentiary ruling may have sidestepped the

search-and-seizure issues, they need to be resolved in some manner, else the

Employer will have an overwhelming advantage in future arbitration

proceedings. At the Union’s request, the arbitrator did issue a subpoena for the

Conservation Officer to testify at the hearing. Arbitrators frequently are called

upon to do this, if for no other reason than that witnesses who are asked to get

off work to testify want to have something to show to their employer. However,

this was purely pro forma, because there is no authority in either the CBA or

State law for a court to enforce a subpoena issued in public sector grievance

arbitration.

In Rowry v University of Michigan, 441 Mich 1, 7 (1992), the Michigan

45
Supreme Court wrote:

The labor-mediation act, MCL 423.1 et seq.; MSA 17.454(1) et seq., is

intended to provide alternatives to resolve labor disputes through
mediation and arbitration. The act provides procedures for parties to
submit disputes to voluntary arbitration. n2

n2 MCL 423.9d; MSA 17.454(10.3).

The provision referenced, MCL 423.9d, says nothing about subpoenas.

MCL 423.231 et seq., which calls for compulsory arbitration of labor

disputes in municipal police and fire departments, does authorize the issuance of

subpoenas (MCL 423.237), but only in interest arbitration, not in grievance

arbitration. See MCL 423.233. Similarly MCL 423.271 et seq., calling for

compulsory arbitration of labor disputes of state police troopers and sergeants,

authorizes subpoenas (MCL 423.277) in interest arbitration, only. See MCL

423.273. Subpoenas are authorized by MCL 600.5021and MCR 3.602(A), (F)

in statutory arbitrations under MCL 600.5001 et seq., but these provisions do

not apply to collective bargaining grievance arbitration. See MCL 600.5001(3).

At present, federal law is of little help to the Union. The Sixth Circuit has

found authority for arbitrators to issue subpoenas in the private sector, TV &

Radio Artists v WJBK-TV, 164 F3d 1004 (6th Cir 1999), but this is public sector

arbitration. In Circuit City Stores, Inc v Adams, 532 US 105 (2001), the

Supreme Court held that the Federal Arbitration Act, 9 USC §§ 1 et seq.

(“FAA”), which authorizes subpoenas (§ 7), extends to employment contracts,

46
but as yet the Court has not ruled on collective bargaining agreements.

If the FAA applies to collective bargaining agreements, it probably

preempts any inconsistent State law. Southland Corp v Keating, 465 US 1

(1984). The hurdle for the Union would be to establish the connection to

“commerce” required by §§ 1 and 2. In Garcia v San Antonio Metro Transit

Auth, 469 US 528 (1985), the Supreme Court held that a local transit authority

was engaged in commerce for purposes of the Fair Labor Standards Act, 29

USC §§ 201 et seq. See generally 15A Am Jur 2d, Commerce.

Leelanau County and its Sheriff’s Department may purchase large

quantities of goods in interstate commerce, including vehicles. The County may

be a destination for out-of-state tourists. The Sheriff’s boats may venture into

navigable waters upon which interstate commerce is conducted, and deputies

may work closely with the U.S. Coast Guard in addressing the needs of

residents and visitors alike. The Sheriff may cooperate with law enforcement

agencies in other states and exchange information with them. Telephone records

may be subpoenaed across state lines. The activities of the County and the

Sheriff may be ever expanding, and the law may be ever evolving.

But at present, the conclusion which the arbitrator reaches from this

analysis is that, if the Employer is allowed to utilize in other grievances and

arbitrations the tactics it used to obtain the disputed telephone records, then the

47
Union will be at a decided disadvantage, because it lacks comparable power.

Union officials can’t simply saunter over to the prosecutor’s office anytime they

need a witness or some documents subpoenaed and, without subpoena power, a

grievant’s putative right to confront witnesses against him is virtually

nonexistent, especially in a case like this, in which many potential witnesses are

not employed by the Employer.

Therefore, the arbitrator respectfully suggests that the parties negotiate a

resolution of the types of search-and-seizure issues which have arisen in this

case, for application to future cases. If they are unable to reach agreement, one

or both may wish to seek a formal opinion of the Michigan Attorney General as

to the legality of the tactics employed. MCL 14.32.

IX. The Arbitrator’s Ultimate Holding In The Case

The arbitrator holds that the Employer failed to prove by a preponderance

of the evidence that it discharged Grievant for just cause, which encompasses

not only the rationale for discipline but also its degree. Enterprise Wire Co, 46

LA 359 (Daugherty Arb 1966).

X. The Remedy

X.A. Grievant’s Work Record Is Not Spotless

Despite all the accolades recited at the beginning of this opinion,

Grievant’s employment record is not unblemished. In 1997, he was suspended 3

48
days for an offensive joke directed toward a tribal police officer (Ex 11). In

1999, he was suspended 15 days for sexual harassment (Ex 12);15 see discussion

of “sexual harassment”, supra. In 2004, he was reprimanded for criticizing

superiors (Ex 13). That same year, he also was reprimanded for an overly

aggressive search (Ex 14). Even in one of the congratulatory letters in Ux 1, he

was chastised for not promptly reporting a major drug bust. Grievant is a high-

maintenance employee.

The arbitrator is not insensitive to the Employer’s concerns. After all, the

public safety is involved. The Sheriff and the Undersheriff are both highly

experienced law officers, the latter having served as Sheriff of Traverse County

for 25 years, so that their judgments should be heeded with narrow exception. A

technical violation of the Domestic Violence Policy and Procedure did occur,

albeit a relatively minor one which caused no harm.

Notwithstanding any deference which may be due the Sheriff’s decisions,

where as here Grievant was charged, tied, convicted, and the ultimate

employment penalty executed—all within a matter of hours—and everyone else

was let off scot-free, it would be almost unconscionable to punish Grievant

alone, and terminating him certainly cannot be justified. AFGE Local 3509 and

Social Security Administration, 06-2 ARB ¶ 3576, 106 LRP 31150 (Arb 2006);

15
There is no explanation of what Grievant allegedly did, and no evidence that any grievance was filed over the
discipline, so the arbitrator is limited to stating the fact of the occurrence.

49
Enterprise Wire, supra (rules must be applied fairly and without discrimination,

degree of discipline must be reasonably related to seriousness of employee’s

offense).

X.B. Counseling

A recurrent complaint in the Employer brief (@ 6, 19-20, 26-27) is that

Grievant has failed to avail himself of counseling opportunities. He was sent to

counseling at the Employer’s expense in 1999 (Ex 12) and by 2001, he was

Deputy of the Year, but he shows definite signs of backsliding. In the short time

the arbitrator had to observe Grievant’s demeanor at the hearing, he came across

as distant, detached, spacey, not quite all there. His sometimes erratic behavior

and inconsistent job performance seem almost bipolar or schizoid (in a

colloquial sense, inasmuch as the arbitrator is no clinician). As a result, the

arbitrator agrees with the Employer, that Grievant is in need of counseling.

As was done in 1999, Grievant is to be sent for a fitness evaluation,

authorized by Article XXIV of the CBA. If possible, the same PhD psychologist

who evaluated Grievant in 1999 should be used. The evaluation should be

thorough and should consider all reasonable causes, including possible

developmental disorders. If the psychologist feels that Grievant should be

evaluated by a medical doctor, that should be done also, at the Employer’s

expense. Any disagreement as to Grievant’s fitness for duty is to be resolved as

50
provided in § 24.1.

Assuming that Grievant is determined to be fit for duty, the psychologist

(and medical doctor, if the psychologist deems necessary) are to work out a

reasonable plan for counseling Grievant, which will entail no fewer than one

counseling session per week, of not less than 50 minutes’ duration, for 6

months. For the next 12 months after that, Grievant is to be counseled at least

every 2 weeks for no less than 50 minutes per session. In an effort to help

Grievant appreciate the value of counseling, he is to be responsible for 60% of

the cost which is not covered by his or the Employer’s insurance. The

counseling plan, including cost estimates and an indication of probable

insurance coverage, is to be submitted to the arbitrator for approval, to ensure

that it is not unduly expensive.

There will be no acceptable reasons for Grievant missing counseling

sessions, save (i) illness, which must be substantiated by a doctor’s written

excuse, (ii) an act of God, (iii) a bona fide emergency, or (iv) any other reason

acceptable to the Sheriff in his sole discretion. All counseling sessions missed

for legitimate reasons are to be made up promptly.

X.C. Back Pay

Grievant is to be put back on the payroll forthwith. If the Sheriff

determines that, until a favorable fitness report is received, Grievant should be

51
assigned to a desk job, given special projects, or put on paid leave, Grievant is to

obey orders. Grievant is to be made whole, including back pay, benefits,

seniority, and any other emoluments of employment which he would have

enjoyed had he not been terminated. If Grievant finally is determined to be unfit

for duty, then he should be treated as terminated as of the date of that final

determination and paid through that date.

The rules as to mitigation of damages are to be followed. Elkouri &

Elkouri, supra, @ 1224-1228. The calculations may be complicated if Grievant

was accustomed to moonlighting or otherwise working two jobs. Office of the

Sheriff, 107 LA 972, 24 LAIS 3328 (Arb 1996). The parties are urged to be

reasonable and agree upon the amount owed Grievant. If they return to the

arbitrator on this issue and he finds that one of them has been unreasonable,

that party will pay.

X.D. Jurisdiction Retained

The arbitrator retains jurisdiction to resolve any issues which may arise

over implementation of his award.

Dated February 23, 2007 _____________________________

E. Frank Cornelius, Arbitrator

52