FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 96-18052

FRATERNAL ORDER OF POLICE,

JACKSONVILLE CONSOLIDATED
LODGE 5-30,
Union,

and

OFFICE OF THE SHERIFF,

CONSOLIDATED CITY OF
JACKSONVILLE,
Employer.
_________________________________/

OPINION OF THE ARBITRATOR

October 15, 1996

After a Hearing Held September 27, 1996

At City Hall, Jacksonville, Florida

For the Union: For the Employer:

T.A. Delegal Joseph Meux, Jr.
General Counsel Assistant General Counsel
FOP Lodge 5-30 600 City Hall
5530 Beach Boulevard 220 East Bay Street
Jacksonville, FL 32207 Jacksonville, FL 32202
 Background

The Jacksonville Sheriff's Office provides its officers with the

opportunity to engage in secondary employment with local employers. In

such employment, officers wear their police uniforms, carry their service

pistols, and drive police cars. They are paid a fixed $20/hr. by the secondary

employer. The officers must pay the City $2/hr., to cover the costs of

uniforms, guns, cars and workers’ compensation.1

The program of secondary employment is mutually beneficial to the

City and its police officers. Through it, officers are able to supplement their

incomes, and the City is able to increase its police presence throughout the

community, at little or no cost. Local employers are provided with a ready

pool of trained security personnel, and the employers and their customers

and other employees enjoy increased safety. The public benefits, and the

City has an interest in the conduct of its police officers working in the

program.

An employer desiring the services of off-duty officers registers with

the Sheriff's Office. A supervisor is assigned the responsibility for seeing

that the employer's personnel needs are met. Officers who work off duty for

the employer record their time biweekly on sheets provided by the Sheriff's

1
The workers’ compensation arrangement was not explained.

2
Office. An officer records his secondary hours worked, totals his time,

computes the amount due him, signs his time sheet, and turns the sheet into

the supervisor, who reviews it and signs his approval.

Time sheets are entitled “INVOICE, OFFICE OF THE SHERIFF,

TIME SHEET”. Completed time sheets are sent to the employer, who pays

the officers directly. An officer receives a copy of his time sheet with his

paycheck.

In mid October 1995, off-duty police officers began working at the

Imperial Estates Apartment Complex in Jacksonville. Sergeant R.S. Hughes2

scheduled officers to work at the complex. In late October, Officer [IW], the

grievant, began working in secondary employment at Imperial.

In January of 1996, Sergeant Hughes found some problems with the

time sheets of an officer working in secondary employment at the Imperial

Estates Complex. This finding led Sergeant Hughes to check the time sheets

of other officers, including grievant. Sergeant Hughes discovered that

grievant had submitted two time sheets covering the same period, 10/30/95-

11/12/95. These were introduced as Sheriff's Exhibits ##1&2 (“SX1&2”).

Sergeant Hughes wrote a memorandum about grievant to Lieutenant

R.L. Townsend, which was forwarded to the Sheriff's Internal Affairs

2
Now Lieutenant.

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Section. The memorandum was introduced as Employee's Exhibit #1. The

case was assigned to Detective T.Q. Givens, Sr. for investigation.

Following his investigation, Detective Givens concluded that grievant

submitted two time sheets covering the same period and, as a result, was

paid twice for the same hours worked. The amount of the overpayment was

$160. Detective Givens concluded that grievant violated General Order

(“GO”) XI.2 and GO LIII.2 and recommended that charges of incompetency

and misconduct against grievant be sustained. Detective Givens’ report was

introduced as Sheriff's Exhibit #3 (“SX3”).

At some point, grievant repaid the money at issue.

Grievant's secondary employment privileges were suspended May 10,

1996.

Charges

Formal charges were issued against grievant in a letter to him, dated

May 13, 1996, and introduced as Sheriff's Exhibit #5 (“SX5”). The four

specific charges are set forth and discussed below.

Collective Bargaining Agreement

The collective bargaining agreement was introduced as Joint Exhibit

#1 (“CBA”). Although §9.3 of the CBA provides an accused officer the right

to a hearing before an ad hoc Sheriff's Disciplinary Hearing Board, grievant

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waived his right. The Sheriff then imposed a 20-day suspension without pay

from grievant's primary employment as a police officer. Grievant requested

arbitration pursuant to CBA §§9.3(c) and 8.1, Step IV; his suspension has

been held in abeyance.

An arbitration hearing was held on September 27, 1996, at City Hall

in Jacksonville, Florida. Both parties were represented by counsel, who

stipulated that no inference is to be drawn from grievant’s waiver of a

hearing before the Sheriff’s Disciplinary Hearing Board. Counsel agreed not

to file briefs.

Decision

After a hearing and consideration of all the evidence, the grievance is

sustained in part and denied in part, and grievant is suspended from

secondary employment for a period of six (6) months, as more particularly

explained below. The charges are addressed in the order of easiest

explication.

Charge II

Grievant is charged with violating General Order LIII.2, of the Rules

and Regulations for the Organization and Government for the Office of the

Sheriff, which reads:

Secondary Employment

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 I. Policy

N. It shall be the responsibility of the officer working

secondary employment to ensure that employee records
are being kept either by the officer or the employer.
These records shall be available for inspection upon
request.

The record-keeping violation alleged in Charge II is addressed first.

Inasmuch as the General Orders were not introduced in their entirety,3 resort

is limited to the language of GO LIII.2 and to the factual context in which it

is being interpreted. From this limited vantage point, the purpose of GO

LIII.2 appears to be to ensure that the City gets its $2/hr. from officers’

secondary employment. In grievant's case, the City concedes that it received

all its money.

GO LIII.2 does not specify what “employee records” are required to

be kept, and the charges shed no light on the issue. The evidence is

uncontradicted that both the grievant and the employer kept records. The

grievant recorded his hours on a calendar and paid the City its hourly fees

accordingly. Imperial Estates maintained a Police Sign-In Sheet on which

officers (including grievant) recorded date, shift, and name (EX3), as well as

Purchase Order Recaps on which an officer's pay history was recorded

(EX2). These records are in addition to the biweekly time sheets previously

3
There was testimony that the General Orders are 4” thick, and counsel confirmed their voluminosity.

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discussed (SX1-2).

The charges do not specify what records were not kept. In fact, ample

records were kept to satisfy GO LIII.2. The Sheriff has failed to establish

Charge II as proper cause for discipline.

Charge I

Grievant also is charged with violating General Order XI.2, of the

Rules and Regulations for the Organization and Government for the Office

of the Sheriff, which reads:

Code of Conduct

IV. Performance of Duty

A. Members shall maintain sufficient competence to properly

perform their duties and to assume the responsibilities of their
positions. They shall perform their duties in a manner which
will tend to establish and maintain the highest standards of
efficiency in carrying out the functions and objectives of the
Sheriff's Office. Incompetency may be demonstrated by:

3. The failure to conform to work standards established for the

member's rank, grade, or position;

In Charge I, grievant is accused of incompetency. Although the

General Orders were not introduced into evidence, the language of GO XI.2

indicates that it pertains to the responsibilities of a police officer acting in his

official capacity (“functions and objectives of the Sheriff's Office”; emphasis

supplied). It does not appear to extend to responsibilities of secondary

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employment which are not the employee's responsibilities as a police

officer.4

In grievant's case, he is charged with violating GO XI.2, as follows

(SX5 at 6, ¶14):

[W] failed to properly document and compare the hours he worked at

the Imperial Estates Apartements (sic) complex to the number of
hours he received payment. As a result of [W]'s incompetency, he
cashed a check for one hundred and sixty dollars ($160.00) for which
he was not entitled to receive.

See also Detective Givens’ report, SX3 at 9. Grievant is being charged with

a two-part offense: failing to document and compare hours worked and paid.

Grievant's responsibility to document his secondary employment is

governed by GO LIII.2, a provision of the General Orders particularly

addressing the subject, which is covered under Charge II just discussed. In

Charge I, the Sheriff seeks to expand that responsibility through the more

general language of GO XI.2. This the Sheriff may not do, under the rule of

construction that the particular governs the general. See Elkouri & Elkouri,

How Arbitration Works (4th ed, 1985) at 356, Cum Supp (1985-89) at 92.

For this reason, Charge I cannot be sustained insofar as it pertains to

grievant's record-keeping responsibility, which is addressed in Charge II.

4
There is no suggestion that GO XI.2 may not apply to an officer's responsibilities in secondary
employment, if they are the same as his responsibilities as a member of the Sheriff's Office. For example, if
an off-duty officer operates his vehicle or discharges his firearm in secondary employment, in a manner
below standards set by the Sheriff for on-duty police officers, then the conduct may come within the ambit
of GO XI.2. However, that is not this case.

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 This leaves so much of Charge I as pertains to grievant's alleged

responsibility to compare hours paid with those worked. In a discipline case,

the burden of proof is on the employer. See How Arbitration Works at 661-

663, and CBA §4.1 (“proper cause“). In this case, the Sheriff offered no

evidence that a police officer has a responsibility to compare the hours he

works against the pay he receives (in either primary or secondary

employment). Grievant was employed as a police officer and security guard,

not as a payroll auditor. Consequently, the Sheriff has failed to establish

Charge I as proper cause for discipline.5

Charge III

Grievant is charged with violating City of Jacksonville Civil Service

and Personnel Rules and Regulations Rule 9.05 which reads:

“Cause shall include . . . willful violation of the provisions of law or

departmental rules”.

No additional violations of departmental rules are alleged in Charge

III, beyond those alleged in Charges I and II, so that nothing further need be

said regarding rules violations. No State statute or City ordinance is cited,

and so no charge of “violation of the provisions of law” can be sustained.

Charge III, like Charges I and II, also fails.

5
There may, of course, be cases in which an overpayment is so glaring that the recipient is charged with
notice of error, but this is not one of them. In this case, grievant, Imperial Estates, and the Sheriff's Office
all had ample opportunity to detect the mistake.

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 Charge IV

Lastly, grievant is charged with violating City of Jacksonville Civil

Service and Personnel Rules and Regulations Rule 9.05(1) which reads:

“Cause shall include . . . conduct unbecoming a public employee”.

Rule 9.05(1) is a catch-all provision covering conduct not specifically

proscribed elsewhere. Only Charge IV provides a basis for disciplinary

action against grievant.

This case does not make a lot of sense. Grievant has been with the

Sheriff's Office 7 years. Except for this one incident, he has a good record.

He is industrious, working 6-7 part-time jobs to earn extra money, which he

needs to buy a house. It doesn't seem reasonable that he would jeopardize his

regular job and $1,000 per month in outside income just to cheat Imperial

Estates out of $160. As Chief W.B. Hodges suggested on the Confidential

Internal Investigation Recommendation, this whole thing “may have been an

oversight.”

On the other hand, grievant's reaction when the overpayment was

brought to his attention was hardly exemplary. Although he did repay the

money, it was not until months later. In the meantime, he engaged in denials

which come across as disingenuous. For example, he denied that he signed

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the duplicate time sheets, although the signatures clearly are his.6 Denials

and delay create the appearance of impropriety.

It would have been so simple for grievant just to have admitted his

mistake, paid the money back, and gotten on with business. Instead, he

turned what may have begun as an innocent mistake into a questionable

incident. While to err may be human (and hence forgivable), a failure to

accept responsibility for one's mistake and to take prompt corrective action

is not proper conduct, especially for an officer of the law. Such a failure

constitutes “conduct unbecoming a public employee.“ Charge IV is,

therefore, sustained.

Appropriate Disciplinary Action

Four charges were leveled against grievant, only one of which can be

sustained. There remains the issue of appropriate disciplinary action. Had

the notice of misconduct averred that charges were being brought in the

alternative, then upholding any one of the charges might provide a basis for

sustaining the entire penalty assessed. However, the charges were not pled in

the alternative.

Since one out of four charges is upheld, the penalty might be

6
Much of the hearing was devoted to defense attempts to demonstrate that Imperial Estates’ payroll
procedures were disorganized. Such evidence cannot obscure the fact that this case stems from grievant's
own submission of duplicate time sheets.

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sustained pro rata, were the charges of equal gravity. However, they are not.

To the contrary, they range from the serious (incompetence) to the criminal

(violation of law) to the non-specific (unbecoming conduct). For this reason,

a proportionate penalty is inappropriate.

In deciding upon appropriate discipline, arbitrators must be cautious

against imposing their own brand of justice and substituting their own

judgment for management's. See How Arbitration Works at 31, 664-665,

Cum Supp at 5-6. In an effort to avoid these arbitral pitfalls, guidance may

be found among the opinions of the managers involved.

In this case, those opinions are expressed in Employee's Exhibit #4

(“EX4”), the Sheriff's Investigative Recommendation Form. Chief W.B.

Hodges recommended only a written reprimand. Director J.N. Henry

recommended a major suspension and 2 years without extra work.

Undersheriff J.L. Gordon recommended a 20-day suspension and no extra

work for a year.

Since grievant's misconduct arose from secondary employment, it

seems reasonable that the penalty should relate to that employment. A six

(6)-month suspension from the Sheriff's program of secondary employment

represents an average among the disparate recommendations of Sheriff's

officials, pertaining to secondary employment, discounted for the fact that

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only the least serious charge against grievant can be sustained. Grievant's

suspension began May 10, 1996. It should continue through November 9,

1996.

Dated: October 15, 1996 _______________________

E. Frank Cornelius, Arbitrator

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