IN THE MATTER OF ARBITRATION

BETWEEN

KITSAP COUNTY DEPUTY SHERIFF'S GUILD

Union,

and

KITSAP COUNTY, WASHINGTON,

Employer.

HEARING SITE:

HEARING DATES:

POST-HEARING BRIEFS DUE:

RECORD CLOSED ON RECEIPT OF BRIEFS:

REPRESENTING THE UNION:

REPRESENTING THE EMPLOYER:

ARBITRATOR:

) ) ) ) ) ) ) ) ) ) ) ) ) )

AND AWARD

GRIEVANCE OF

BRIAN McEVOY

Kitsap County Administration Offices Port Orchard, Washington

May 20 & 21,2010

Postmarked June 25,2010

July 2,2010

Reba Weiss

Cline & Associates Suite 2301

1001 Fourth Avenue Seattle, WA 98154

Debra A. Boe

Kitsap County Prosecuting Attorney's Office

614 Division Street, MS-35A Port Orchard, WA 98366

Gary L. Axon

P.O. Box 190 Ashland, OR 97520 (541) 488-1573

I.

INTRODUCTION

This case comes before the Arbitrator as a result of Kitsup County

Sheriff's Office's (Employer or County) termination of Deputy Brian McEvoy (Grievant).

On February 8, 2009, McEvoy was driving his personal vehicle in excess of the posted

speed limit when he was pulled over by a Washington State trooper. The trooper

believed McEvoy was driving under the influence of intoxicants. Grievant McEvoy

refused to submit to a Breathalyzer test. The refusal to submit to Breathalyzer testing

triggered a one-year mandatory administrative revocation of McEvoy's driver's license.

On July 17, 2009, the Employer terminated McEvoy due to his inability to operate a

motor vehicle without limitations. The Kitsap County Deputy Sheriff's Guild (Guild) filed

a grievance alleging the termination was without just cause. When the parties were

unable to resolve the dispute in the lower levels of the grievance procedure the Guild

moved the case to arbitration.

II.

STATEMENT OF THE ISSUE

The parties stipulated that the question for the Arbitrator is as follows:

Did the Employer, Kitsap County Sheriff's Office, have just cause to terminate Brian McEvoy on July 17, 2009? If not, what is the appropriate remedy?

The parties further stipulated that in the event the grievance is sustained

the Arbitrator would retain jurisdiction for 90 days to resolve any disputes over remedy.

If the grievance is denied, there will be no remedy.

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III. RELEVANT CONTRACTUAL PROVISIONS

ARTICLE 1 - RIGHTS OF THE PARTIES SECTION I - RIGHTS OF MANAGEMENT

1. All management rights, powers, authority and functions, whether heretofore or hereafter exercised, and regardless of the frequency or infrequency of their exercise, shall remain vested exclusively in Employer. It is expressly recognized that such rights, powers, authority and functions include, but are by no means whatever limited to, the full and exclusive control, management and operation of its business and affairs; ... the right to make and enforce safety and security rules and rules of conduct; ... and the right to discipline or discharge employees for just cause.

SECTION K - SHERIFF'S RULES AND REGULATIONS

Guild and Employer acknowledge the existence of the Sheriffs Rules and Regulations. The parties are currently engaged in bargaining a revision to the Sheriffs Policies and Procedure's Manual.

APPENDIXC

CODE OF PROFESSIONAL CONDUCT AND RESPONSIBILITY

DISCIPLINARY RULES

Peace officers shall be subject to disciplinary action for unprofessional conduct whenever:

RULE 4.5 they engage in any conduct in their personal or business affairs which adversely affects their performance, or brings discredit to the peace officer profession or their employing agency.

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RULE 4.10 they willfully engage in any activity which constitutes a conflict of interest or is in violation of any law.

Guild Ex. 1.

KITSAP COUNTY SHERIFF'S OFFICE POLICY

4.01.00 CONDUCT AND DISCIPLINE

4.01.00 GENERAL BEHAVIOR----A member of this department shall not act or behave privately or officially in such a manner as to bring discredit upon himself or the department.

4.01.02 COMPETENCE----AII members and employees of this department are expected to carry out their assigned duties in a competent and efficient manner.

a) Incompetence may be demonstrated by the following actions:

2) An unwillingness or inability to perform assigned tasks;

4.01.07 OBEDIENCE TO RULES---Members and employees of the department shall conform to and abide by the following:

a) Federal, State and Local laws and Ordinances shall not be violated;

b) All policies, rules, regulations and procedures of the department;

c) All directives published by the department and issued by competent authority.

Officers and employees in violation of any of the above shall be subject to disciplinary action ....

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4.04.11 DISCIPLINARY ACTION----The following types of disciplinary action may be taken at the discretion of the Sheriff against an officer or employee in cases where an allegation is found to be "sustained" or "other misconduct".

A) Verbal reprimand, 8) Written reprimand,

C) Change of assignment,

D) Loss of vacation, compensatory time,

E) Compulsory examination by a department physician,

psychologist, or psychiatrist,

F) Suspension without pay,

G) Reduction in rank,

H) Termination of employment.

Guild Exs. 32, 33, 34.

CIVIL SERVICE RULES

Section 11.3. Discipline----Good Cause----Illustrated. The following are declared illustrative of adequate causes for discipline; discipline may be made for any other good cause:

Section 11.3.01: Incompetency, inefficiency, inattention to, or dereliction of duty;

Section 11.3.10: violation of reasonable requirements

promulgated by the Sheriff's Written Rules

Section 11.3.11: Any other cause, act or failure to act which, under law or these Rules, or judgment of the Commission, is grounds for or warrants dismissal, discharge, removal or separation from the service, demotion, suspension, forfeiture of service credit, deprivation of privileges or other disciplinary action.

Guild Ex. 21.

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IV. STATEMENT OF FACTS

Kitsap County Sheriffs main offices are located in Port Orchard, Washington. The County employs approximately 90 Patrol Deputies who are assigned to patrol the 396 square miles of Kitsap County. In a normal workday, a Patrol Deputy is expected to spend approximately 50% of their time "behind the wheel" of a patrol vehicle. Patrol Deputies use their patrol vehicle to travel between home and work. The vehicles are parked, while off duty, at the Deputy's home. At the time of his termination Grievant Brian McEvoy had worked as a Patrol Deputy in the Kitsap County Sheriffs Patrol Division for approximately ten years. McEvoy had no prior significant disciplinary action.

On February 8, 2009, at approximately 10:00 a.m., McEvoy was off duty and driving his personal vehicle home from an out of town overnight gathering at a friend's home. His wife was the only passenger in the vehicle. McEvoy was driving faster than the posted speed limit when he was pulled over by a Washington State trooper. The trooper suspected that McEvoy was driving under the influence of alcohol and requested that he submit to field sobriety tests. McEvoy refused. Grievant was then arrested for suspicion of DUI and transported to the police station where he was asked to submit to Breathalyzer testing. McEvoy refused Breathalyzer testing. McEvoy was charged with DUI and released to the custody of his wife. The traffic stop and subsequent arrest occurred in King County, Washington.

On February 10, 2009, McEvoy reported to his supervisor that he had been arrested for DUI two days earlier. On February 13, 2009, Grievant was notified he was being placed on administrative assignment and that an internal administrative

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investigation into his DUI arrest had been initiated to determine whether any violation of internal policies or rules had occurred.

Claire Bradley, a Chief Deputy Prosecutor for Kitsap County, testified at the arbitration hearing about driver's licensing ramifications in DUI cases. The refusal to submit to breath or blood alcohol testing is a special allegation, separated from the DUI accusation. Refusal "to blow" is not a crime but does trigger administrative penalties, which include an automatic one-year license revocation. An individual accused of DUI must be provided with an implied consent warning, which discloses the consequences of taking or refusing to take a Breathalyzer test.

An individual who has refused Breathalyzer testing has the right to contest the automatic license revocation through a formal hearing process before the Washington Department of Licensing (DOL). If a hearing is requested and the DOL concludes the arresting officer lacked probable cause for the arrest, the automatic license revocation is set aside.

If an individual's license is suspended or revoked, either through conviction of a DUI or refusal to submit to testing, Washington State law allows the option of applying for a permissive Ignition Interlock License (IlL). An ignition interlock device is installed on the individual's personal vehicle and high-risk liability insurance must be obtained. The individual is then issued a valid restricted license and can legally drive as long as all stated restrictions are met. Washington law allows an exemption from the installation of an interlock device on employer owned vehicles for an individual with an IlL who is required to drive an employer owned vehicle during working hours. In order for the exemption to be valid the DOL requires a form, entitled "Employer

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Declaration for Ignition Interlock Waiver," be completed. The form must be signed and

dated by the employer and carried by the IlL holder when driving an employer owned

vehicle without an ignition interlock device. The form's declaration reads:

This employee is required to operate a vehicle during working hours that is owned by this company.

I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

Guild Ex. 11.

Following his arrest, McEvoy was appropriately provided all implied

consent warnings. He understood that if he refused to give breath samples his driver's

license would be automatically revoked by the Washington Department of Licensing for

at least one year. McEvoy refused to submit to Breathalyzer testing. Grievant then

contested the pending loss of his license, requesting a hearing before the DOL.

Sergeant Jim McDonough was assigned to head the investigation into

Grievant's DUI arrest. During the investigation Sergeant McDonough obtained and

reviewed the arrest report and interviewed the Washington State troopers involved in

McEvoy's arrest. To determine the depth of McEvoy's knowledge of DUI laws, Sergeant

McDonough researched DUI cases that Deputy McEvoy had been involved with in a

professional capacity. He also reviewed training records, which showed that Grievant

had taken Breathalyzer refresher-training courses and that McEvoy's Breathalyzer

certification card was still active. Sergeant McDonough contacted the DOL and learned

Grievant's license revocation hearing before the DOL was scheduled for April 8, 2009

and that meanwhile Grievant's license had not yet been suspended. Two days prior to

the DOL hearing date Sergeant McDonough was notified that the hearing was

postponed and rescheduled for May 21,2009.

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McEvoy was notified in a letter dated April 27, 2009, that a tape-recorded

interview was scheduled for May 1, 2009 to complete the investigation of Grievant's

conduct on February 8, 2009. The letter also stated the investigation had been

expanded to include a separate allegation arising from an incident which had occurred

on November 9, 2007. The letter listed specific Department policies and regulations,

which may have been violated by Deputy McEvoy.

During the interview the Guild objected to the expansion of the

Department's investigation into the November 9,2007 incident. When questioned about

the DUI arrest on February 8, 2009, Grievant stated that he was not intoxicated. He

contended that the reason he refused the Breathalyzer testing was because of his pride

and the belief he was being wrongfully accused. Grievant felt that the arresting officer

concluded, without sufficient basis, that he was intoxicated. In the interview Grievant

said:

... That is an unbelievably short period of time for him to determine I was intoxicated and 1 ... 1 felt ... when he did that, I said you know, I'm gonna exercise my rights and say as little as possible to this guy because anything I say is gonna be turned or twisted and taken out of context and that. .. and my suspicions were exactly correct by look ... reading that report.

Co. Ex. 6.

On May 7, 2009, Sergeant McDonough prepared a summary of his

investigation, which included recommendations. McDonough concluded there was

sufficient evidence to find McEvoy had violated Department Policy 4.01.00 "For not

providing a breath sample under RCW 46.20.308," Rule 4.01.07 "For the reason given

above" and violations of Sheriff's Civil Service Rule 11.3.10. The evidence did not

support other considered violations. Co. Ex. 5.

McDonough's report and

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recommendations were forwarded to Chief Gary Simpson. On May 19, 2009, Chief Simpson sent Sergeant McDonough a written request for additional information and clarifications in the investigation. Guild Ex. 12.

In response, to the Chiefs request, Sergeant McDonough sent a letter to McEvoy dated May 27, 2009 seeking additional information. That same date, another letter was sent to Grievant stating, in part " ... the pending criminal case against you has not been filed and your driving status is still being reviewed by the Department of Licensing; both of which may have a bearing in the administrative investigation." Co. Ex. 5. Grievant provided all of the additional information requested in a timely manner.

On May 21, 2009, the Department of Licensing hearing was held. The DOL findings were issued on June 20, 2009. It was concluded that probable cause existed for Grievant's arrest and that the arrest was lawful. DOL found that Grievant was properly given implied consent warnings and that he refused to submit to requested Breathalyzer testing. The DOL concluded that the revocation of Grievant's privileges to drive should be sustained. Co. Ex. 7.

On June 29, 2009, Grievant McEvoy contacted Lt. John Gese and informed him that he had not prevailed in the DOL hearing. Grievant said that he was seeking to obtain an IlL and asked if the County would allow him to work with the restricted license. Grievant indicated there was paperwork that would need to be completed and had the paperwork delivered to Lt. Gese's office that same day. The paperwork and a memo describing the interaction between Grievant and Lt. Gese were sent to Chief Gary Simpson. Guild Ex. 15.

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On June 29, 2009 the Employer generated a letter to Grievant. The letter

reads, in part:

This letter is to advise you that the Sheriffs Office has initiated an administrative investigation based upon information received from the Washington State Department of Licensing that your driver's license will be revoked, effective June 20, 2009 for one calendar year. Possessing a valid Washington State driver's license is a requirement for employment as a Kitsap County Deputy Sheriff.

The administrative investigation will determine whether there have been any violations of Kitsap County Sheriffs Office Policies and/or Sheriffs Office Civil Service Rules based on your conduct during this matter.

Guild Ex. 19.

On July 2, 2009, Chief Simpson sent a letter to Grievant referencing his

request for an Ignition Interlock waiver. The letter states that the Grievant's refusal to

take a breath test during a DUI investigation resulted in Grievant's license being

revoked for one year. In denying Grievant's request for an IlL exemption, Chief

Simpson states:

Because of the ignition interlock requirement, the Sheriff must either waive the requirement or have a law enforcement officer driving a patrol vehicle with such a device.

These conditions are completely unacceptable for a professional law enforcement organization and doing so would bring discredit to this agency. Allowing you to drive a patrol vehicle under these circumstances is contrary to the policy and practice of the Sheriff and Kitsap County.

Therefore, the Sheriff will not waive the Ignition Interlock Drivers License requirement, nor allow any such device be installed in a County patrol vehicle.

Co. Ex. 11.

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Also dated July 2, 2009, Chief Simpson sent a second letter to Grievant.

This letter gave notice of pre-termination and of a Loudermill Hearing to be held on July

9, 2009. The six-page document reads, in part:

I have recently learned that a Department of Licensing administrative hearing was conducted on May 21, 2009, in which you argued the revocation of your driving privileges be rescinded on the basis that the arresting officer did not have probable cause to arrest and reasonable grounds to believe Petitioner had been driving under the influence of intoxicants.

The Final Order by the Hearing Examiner was "It is hereby ordered that the determination of the Department of Licensing to issue a revocation of Petitioner's privilege to drive be sustained." This finding has since been presented to the Department of Licensing, resulting in your driving privileges being revoked for one year effective June 30, 2009.

This fact causes me great concern as to your ability to effectively perform the essential functions of a deputy sheriff. The Kitsap County Sheriff's Civil Service Commission Class Specifications for DEPUTY SHERIFF I indicates a deputy sheriff must possess a great deal of skills and licensing which require or are associated with the ability and necessity to drive a motor vehicle on a regular basis. (see attached Deputy Sheriff Job description).

The ability for a deputy sheriff to drive a vehicle is an essential and necessary function of your duties on a day-today basis. Having a revoked driver's license does not allow you to drive, therefore restricting you in performing the very basic functions of a deputy sheriff. Your inability to perform fundamental practices and skills necessary to safely, effectively and legally conduct business as law enforcement professional are not possible under these circumstances. The situation is unacceptable and outside the authority of our office to realistically correct.

I completed my review and have made a preliminary determination as to whether your actions violated Kitsap County Sheriff's Office policies and procedures, the Code of Professional Conduct for Kitsap County Peace Officers, and

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the Civil Services Rules for Kitsap County Sheriffs Office Employees. I have made a preliminary determination that the evidence supports a finding that your conduct did violate these rules and regulations resulting in the necessity to terminate your employment with the Kitsap County Sheriff's Office.

Your inability to perform the essential functions of a deputy sheriff are impossible without a valid driver's license. This is a basic expectation for all deputies as outlined in the job description for DEPUTY SHERIFF I. Your one year revocation status does not allow this necessity to exist, and no realistic accommodations are evident. There is evidence beyond any doubt that attempts to restore your ability to perform the essential functions of a deputy sheriff are impossible.

The outcome of this unfortunate circumstance is termination from employment with the Kitsap County Sheriff's Office.

Co. Ex. 13, Guild Ex. 21.

Grievant received an ilL on July 8,2009. The pre-termination hearing was

held the next day. At the hearing, Grievant again presented the waiver to Chief

Simpson requesting that it be signed so that he could operate a patrol vehicle with an

ilL. The request was again denied. Chief Simpson testified at the arbitration hearing

that there was no obligation to sign the waiver and that there would be liability risks to

the agency and the public if a deputy with an ilL were allowed to operate a patrol

vehicle. Chief Simpson likened a patrol vehicle to a commercial vehicle stating that

Washington law did not allow the IlL waiver for commercial vehicle operation.

Chief Simpson mailed Grievant a Notice of Termination on July 17, 2009.

The notice states, in part:

The administrative investigation focused on the issue of your ability to perform the essential functions of a deputy sheriff, while not in possession of a valid operators license. The investigation took into consideration the status of the ignition

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interlock device and how this condition affected your ability to do the job.

You have obtained an ignition interlock device and license (ilL) for your private vehicle. The ilL waiver to drive a "worker vehicle" causes a great burden to be placed upon any employer who risks allowing an employee to drive a worker vehicle under these circumstances. While this waiver may be acceptable or appropriate for some private businesses, this is not a condition which is reasonable or acceptable for any law enforcement agency or government entity to approve.

An essential requirement of a Kitsap County Sheriff's Office Deputy Sheriff is to be fully licensed and able to drive a vehicle with no limitations, which cannot be waived. There are no circumstances in this situation which merit an accommodation. An accommodation or waiver would diminish the public trust, diminish the credibility of the employee's truthfulness declarations in similar enforcement activities, and would be contrary to public policy for any law enforcement agency.

CONCLUSION:

Termination

The allegations of misconduct have been proven to have occurred, appropriate procedures and investigation practices have been followed, Just Cause standards have been met, opportunities to provide mitigating and/or arguments to be considered have been presented to the decision maker and a final decision has been made.

The outcome of this matter has resulted in the finding of termination from employment with the Kitsap County Sheriff's Office. The effective date of the termination will be at the end of the business day Friday July 17, 2009 and is subject to appeal in accordance with your current labor contract.

Guild Ex. 25; emphasis added.

On July 17, 2009, the Guild filed a grievance contesting the termination of

Grievant McEvoy. The Guild claimed lack of just cause and contended the level of

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discipline was too severe and not supported by the allegations against Grievant. The

grievance reads, in part:

The Guild concurs that the ability to operate a motor vehicle is an essential job function of a Deputy Sheriff. While Deputy McEvoy's normal operator's license is revoked for refusing a breath test he has been issued a valid restricted license. The restricted license is referred to as an Ignition Interlock License or (ilL).

The (ilL) allows him to operate any vehicle with an ignition interlock device or any employer's vehicle without an interlock. In order for a person with an (ilL) to operate an employer's motor vehicle without an ignition interlock they must obtain a waiver by providing an employers declaration that they are required to operate an employer's motor vehicle during work hours.

Kitsap County claims they are the ones responsible for issuing the waiver and that they are unwilling to do so. The Guild's Legal Counsel informed Kitsap County that they were not providing the waiver, just a declaration stating that he was required to operate a work vehicle during work hours. Kitsap County disputed the Guild's claim by insisting that because the title of the document contained the word "waiver", it was they who were issuing the waiver.

In this instance, Kitsap County has been provided an avenue of reasonable accommodation in regards to Deputy McEvoy. Deputy McEvoy does have a valid license that would allow him to perform the essential duties of a Deputy Sheriff. Kitsap County can either allow the installation of an ignition interlock on the vehicle or simply sign the declaration and let DOL waive the interlock requirement.

By refusing either of these reasonable requests Kitsap County is creating the very disability they seek to terminate him for (the inability to drive his work vehicle). When an employer creates a disability, that disability is not grounds for termination, the employer must make other accommodations such as a change in assignment, administrative duties etc.

Guild Ex. 26.

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On August 31, 2009, the County denied the grievance reiterating that Grievant McEvoy did not have a valid driver's license and that accommodating the IlL waiver as requested would create an undue hardship and unreasonable burden on the County. Guild Ex. 27. The Guild moved the case to arbitration on September 15, 2009. A hearing was held at which time both parties were accorded the full and complete opportunity to present evidence and argument in support of their respective positions. Post-hearing briefs were timely filed. The grievance is now properly before the Arbitrator for a final and binding decision.

v.

POSITIONS OF THE PARTIES

A. The Employer

The Employer argues that preponderance of evidence is the appropriate standard of proof in this case and that just cause for discharging Grievant McEvoy was clearly established. Grievant committed misconduct when he refused Breathalyzer testing. Grievant knew that this refusal would impact his ability to perform his job. Grievant understood the implications of his decision and chose to risk license suspension over providing evidence of sobriety or intoxication. Neither the law nor the parties' Collective Bargaining Agreement (CBA) require that the Employer take on the liability and risk to the public associated with allowing a deputy to operate a patrol car with a revoked driver's license. Termination, under the circumstances was appropriate and allowed under the parties' agreement.

Driving is an essential and high-risk function of a patrol officer's job

requiring a valid driver's license and a driving record free of revocations. When

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Grievant applied for his job with the County as a patrol officer he fully understood these requirements. Throughout his career as a patrol officer, Grievant was required to undergo periodic training in emergency vehicle operation. Driving an emergency police vehicle is probably the most essential function of a patrol officer and the skills and responsibilities associated with this function require a valid driver's license.

Any person who operates a motor vehicle in Washington is deemed to have given consent to Breathalyzer testing if arrested for DUI. Refusal to cooperate with this implied consent is a serious crime, in itself. Implied consent warnings are mandatory. The warnings clearly state that a refusal to cooperate will result in a oneyear license revocation and that refusal to submit to Breathalyzer testing can be used against the driver as proof of guilt in a criminal DUI case. The seriousness of refusal to submit to testing is shown by the fact that refusal can result in even greater penalties than cooperating and taking a Breathalyzer test, even if test results show one to be under the influence.

The Employer claims that the Guild has the burden of proving, as an affirmative defense, that Grievant should be allowed to operate a patrol vehicle with a revoked license. The Guild cannot meet that burden and is inappropriately attempting to shift that burden of proof to the Employer to explain why there was a refusal to sign the IlL work vehicle waiver. Although the legislature provided an avenue for someone with an IlL to drive a work vehicle without ignition interlock, it also gave the employer complete discretion and the final say on whether it is willing to accept that responsibility by signing the waiver. The Grievant was terminated for the misconduct of refusing a breath test during a DUI arrest and the subsequent revocation of his license by the

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DOL. The County was completely within its rights to refuse to sign a waiver, which would allow Grievant to operate a patrol vehicle while under the restrictions of an IlL.

The Employer contends that the legislature excluded commercial drivers from operating work vehicles with an ilL. Although technically, a patrol car is not a commercial vehicle, the rationale for the commercial vehicle exclusion is similar. Commercial vehicle driving requires greater skill and training than operating noncommercial vehicles. The same applies to driving a patrol car, which are often operated in high-risk emergency situations. The Employer could not allow such a risk to public safety.

The Employer disputes the Guild's claim that Grievant was due a

reasonable accommodation under the circumstances.

The only time an

accommodation is mandated is if an employee has a qualifying disability and the accommodation is reasonable. Grievant was not disabled and his inability to drive resulted from misconduct. Allowing Grievant to drive after his refusal to submit to Breathalyzer testing following a DUI arrest is not a reasonable accommodation. The County is under no obligation to accommodate Grievant by signing a waiver that would allow him to drive a patrol car under the circumstances in this case.

The Employer's concerns about public safety, public trust, and the additional liability exposures associated with allowing a Patrol Deputy with an IlL to operate a patrol vehicle are legitimate. The Employer is responsible for its employee's actions while working. The Washington DOL would not be liable if Grievant chose to drink and drive a patrol vehicle, but the Employer most certainly would face such

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exposure. The Guild's argument that the waiver is not really a waiver and that liability would not be increased is without merit.

The "Daugherty Just Cause Standard" includes seven tests, none of which address an employer's duty to accommodate the consequences of an employee's misconduct. The Employer separates the issues to be addressed claiming: (1) McEvoy's refusal of a breath test after being arrested for DUI was willful misconduct knowing the job consequences of his refusal; (2) the revocation of McEvoy's driver's license rendered him unable to perform the essential functions of a deputy sheriff; (3) McEvoy's off duty conduct harms the reputation of the Sheriff and rendered Grievant unable to perform the essential functions of his job as a law enforcement officer; (4) termination is justified in case law based on McEvoy's misconduct and his resulting license revocation; (5) the plea agreement reached by McEvoy for his DUI charge is not relevant to the grounds for termination; and (6) the County has never had a deputy arrested for DUI who refused a breath test, nor has it had to discipline an employee for a license suspension.

The Employer disputes the Guild's contention that the investigation into Grievant's misconduct was cursory or that the findings were sudden or made in anger. The investigation was full and fair. Grievant was placed on paid administrative leave three days after reporting the DUI arrest. The investigation included interviews, documentation, and took a full five months to complete. The County conducted a thorough investigation and Grievant received full due process throughout the entire investigation process.

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The County met its burden of proving just cause for discharging Grievant.

The Guild failed to meet its burden of proving the affirmative defense that the County was obligated to accommodate Grievant's misconduct. Therefore, the Arbitrator should deny the grievance in its entirety.

B. The Guild

The Guild argues the Employer bears the burden of proving that the discipline of Grievant was for just cause. In concluding the Employer lacked just cause for termination, the Guild examines and applies the seven key elements required for just cause as stated by arbitrator Daugherty in Enterprise Wire Company, 46 LA 359 (Daugherty 1966).

The Employer is obligated to ensure rules are articulated and administered in a clear and consistent manner. This is especially true when the alleged misconduct occurs while off duty. The Employer failed to provide notice that exerting his statutory right to refuse a Breathalyzer test while off duty would terminate Grievant. There is no specific rule that prohibited Grievant from refusing a Breathalyzer test. Nor does a rule exist that says if Grievant invoked his statutory right to refuse a Breathalyzer test he would be terminated. McEvoy was never informed that he would be terminated if he obtained an IlL. In the past, discipline for other employees who committed infractions such as drinking on duty, providing false information, incompetency, off duty disputes, and false or fraudulent conduct resulted in reprimands or suspensions. Grievant had no way of knowing that his off duty conduct could result in termination.

The Employer's actions were not reasonably related to the administration of its business or expectations of its deputies. There is absolutely no evidence or

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factual basis to support the Employer's contention that the public would be offended by a deputy operating a patrol vehicle under an IlL waiver. Had the Employer signed the IlL waiver, Grievant would have been able to drive a Department vehicle without an interlock device installed. The Employer's argument that signing the declaration would create additional liability for the Department is also without basis. The DOL declaration is merely a declaration and in no way waives or increases liability. A simple telephone call to the Washington DOL would have clarified this fact for the Employer. In sum, the only rationale presented by the Employer for not signing the document is "you can't make me" which is not a reasonable basis for refusing to perform a simple act that would have allowed a long-term good employee to remain working.

The Guild opines that it was the Employer who rendered the Grievant unable to work. The Employer created the very disability for which it fired Grievant, which was improper and without just cause. The Guild relies upon Mcinerney Spring & Wire Co., 72 LA 1262 (Roumell 1979) in support of this argument. Arbitrator Roumell distinguished between discipline for an underlying offense and discipline for being unable to work. That case involved an employee jailed for a DUI offense who was unable to report to work because the employer refused to participate in a work release program. The refusal to participate in the work release program was what rendered that employee unable to work, not the jail sentence. In Grievant's case, it was the refusal to sign the declaration that made it impossible for Grievant to perform his duties, not the license revocation. The Sheriff's creation of the disability, which was then used to terminate Grievant, is without just cause. The Employer had only two options, either

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sign the ilL waiver or reassign Grievant to a position that would not require driving a County vehicle for the period of time his license was revoked.

The Employer's investigation was not fair, objective, or thorough. The Employer failed to contact the Washington DOL to obtain full information about an ilL waiver. Further, there was conflicting testimony and information as to whether the Employer was conducting one or two investigations: the refusal to blow and/or the DUI charge. That confusion also clouded what evidence was being used to support which of the allegations. The Department's own confusion highlights the shabby nature of the investigation and proves the investigation to be flawed. Therefore, the grievance should be sustained.

The Guild claims the Employer violated principles of double jeopardy and the "Damocles Sword." The Employer made it clear that should the grievance be sustained, the Department had full intentions of re-opening the investigation and proceeding with a second termination based upon the DUI. The Employer's dangling this threat over Grievant's head is precisely the type of conduct prohibited under the "Damocles Sword Standard" and is a denial of due process and just cause. Further, fundamental fairness prohibits disciplining an employee twice for the same offense. By failing to address the DUI arrest with the Breathalyzer refusal the Employer waived any future discipline regarding the DUI. By continuing to "dangle" the DUI arrest over Grievant's head the Employer violated principles of double jeopardy, fundamental fairness, and due process. Therefore, the grievance should be sustained.

Termination was an overly harsh discipline and not consistent with discipline rendered for others who engaged in more serious misconduct. The Guild

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presented evidence of other employees who were suspended or reassigned after being found in violation of Employer rules. This included evidence of another Sheriff's deputy who was accommodated after an off duty dispute which resulted in an inability to carry a firearm. The Guild concluded that the discipline against Grievant was overly harsh when compared to other similar misconduct and that the discipline should be reversed and the grievance sustained.

Grievant had no prior disciplinary history and termination was too harsh a penalty for a first offense. The termination violated the doctrine of progressive discipline. The parties' contract states: "Violation of disciplinary rules requires appropriate adjudication through a continuum of disciplinary action, ranging from oral reprimand to termination ... as dictated by the individual case." The Employer failed to follow the continuum of disciplinary action. The policy of progressive discipline mandates withholding more severe penalties until it is established the employee will not respond to a lesser penalty. The Employer should have either signed the waiver or reassigned Grievant to a job that did not require operating a vehicle. The failure to do so violates principles of progressive discipline and there is no rational or justifiable basis for simply terminating Grievant.

The Employer lacked just cause for the termination. The Arbitrator should reinstate McEvoy with full back pay and other appropriate remedies to make Grievant whole.

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VI. DISCUSSION

The Arbitrator finds the Employer proved by clear and convincing evidence there was just cause for the termination of Grievant Brian McEvoy for the refusal to take a breath test during a DUI investigation which resulted in the one-year revocation of Grievant's driver's license. The record evidence and contract language sustain the Employer's position in this case. Accordingly, the grievance will be denied and dismissed in its entirety. The reasoning of the Arbitrator is set forth in the discussion that follows.

The grievance before this Arbitrator is based on a contract. The rights and duties of the parties flow from the contract. Arbitral authority instructs that the "clear and convincing" standard of proof is appropriate in discharge cases. In this case, the Employer bears the burden of proving by clear and convincing evidence that (1) Grievant McEvoy engaged in the conduct alleged in the July 17, 2009, Notice of Termination, and (2) the conduct was such as to provide just cause for immediate discharge.

Your Arbitrator turns first to the question whether sufficient proof exists to conclude that Grievant engaged in the conduct alleged in the Notice of Termination. It is undisputed that on February 8, 2009, Grievant was arrested and cited by the Washington State Patrol for driving under the influence. During the arrest Grievant refused to submit to Breathalyzer testing which resulted in the one-year revocation of driving privileges. The conduct alleged in the Employer's disciplinary notice unquestionably occurred.

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Having found the conduct alleged in the Notice of Termination occurred,

your Arbitrator must next determine whether the conduct was such to provide just cause

for termination. I turn to the parties' Collective Bargaining Agreement for guidance:

ARTICLE 1 - RIGHTS OF THE PARTIES SECTION I - RIGHTS OF MANAGEMENT

1. All management rights, powers, authority and functions, whether heretofore or hereafter exercised, and regardless of the frequency or infrequency of their exercise, shall remain vested exclusively in Employer. It is expressly recognized that such rights, powers, authority and functions include, but are by no means whatever limited to, the full and exclusive control, management and operation of its business and affairs; ... the right to make and enforce safety and security rules and rules of conduct; ... and the right to discipline or discharge employees for just cause.

Guild Ex. 1; emphasis added.

SECTION K - SHERIFF'S RULES AND REGULATIONS

Guild and Employer acknowledge the existence of the Sheriff's Rules and Regulations ....

Guild Ex. 1.

It is your Arbitrator's duty to enforce the Collective Bargaining Agreement

as written by the parties. The parties' CBA unequivocally conveys the right for

management to "discipline or discharge employees for just cause." Emphasis added.

The parties' agreement also establishes the existence of Rules and Regulations

governing employee behavior. The seven-step Enterprise Wire test, relied upon by both

parties in this proceeding, provides a logical way to determine the existence of just

cause.

Grievant understood the consequences of his conduct when he made the

choice to refuse Breathalyzer testing following a DUI arrest. I do not agree with the

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Guild's argument that notice in this case required the Department to have a specifically

enumerated rule stating that a Deputy Patrol Officer who refuses a Breathalyzer test

during a DUI stop could be discharged from employment. The parties' CBA states:

APPENDIXC

CODE OF PROFESSIONAL CONDUCT AND RESPONSIBILITY

DISCIPLINARY RULES

Peace officers shall be subject to disciplinary action for unprofessional conduct whenever:

RULE 4.5 they engage in any conduct in their personal or business affairs which adversely affects their performance, or brings discredit to the peace officer profession or their employing agency.

RULE 4.10 they willfully enqaqe in any activity which constitutes a conflict of interest or is in violation of any law.

Guild Ex. 1; emphases added.

Grievant was a seasoned law enforcement officer with almost ten years of patrol work

under his belt at the time of arrest. Grievant understood he was not cooperating in a

criminal investigation when he refused to blow and he understood he could lose his

driving privileges for this action. Grievant most certainly knew that his conduct could

"bring(s) discredit to the peace officer profession." There need not be a detailed written

rule describing every potential scenario in order for an enforceable rule to exist. An

employer has the right to rely on its employees having a modicum of common sense in

understanding rules and expectations.

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In his professional capacity Grievant was responsible for enforcement of public safety. Grievant was trained in procedures for traffic stops where DUI was suspected. Grievant was certified in the administration of Breathalyzer testing and understood the need for cooperation in criminal investigations. Grievant understood that the refusal to submit to Breathalyzer testing could be used against him in any criminal proceeding as proof of guilt and that he was putting his driving privileges at risk when he refused to provide breath samples. Grievant understood that driving was an integral part of his job and that without a license he could not perform that job. I find that Grievant had adequate warning that the failure to voluntarily cooperate in a criminal investigation causing the loss of his driving privileges could result in the termination from his job as a Deputy Patrol Officer.

The requirement and expectation that a peace officer refrain from engaging in "conduct in their personal or business affairs which adversely affects their performance, or brings discredit to the peace officer profession or their employing agency" is reasonably related to the efficient and safe operation of the Sheriffs Office. Emphases added. The Sheriffs Office is a law enforcement agency charged with maintaining public safety. It is reasonable to expect that peace officers hold themselves to the same standards of conduct as is expected of the public. It is also a reasonable requirement that peace officers refrain from conduct in their personal affairs, which adversely affects their work performance. Grievant's refusal to voluntarily cooperate in an investigation by not submitting to a Breathalyzer test resulted in the loss of his license. This loss adversely affected Grievant's ability to perform his job patrolling the roads of Kitsap County. The ability of a patrol officer to safely drive a patrol vehicle is a

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reasonable requirement related to the safe and efficient operations of the Sheriff's Office.

The Employer's investigation was thorough, fair and impartial, and produced clear and convincing evidence Grievant violated the CBA and Employer rules. The investigation took five full months to complete. When the Employer first learned of the alleged misconduct, Grievant was placed on administrative duty with pay. He remained on this status throughout the duration of the entire investigation. The Employer obtained copies of pertinent records, interviewed witnesses, and gave Grievant the full opportunity to be heard. The Employer waited until Grievant's license was revoked before making the determination to discharge Grievant from the Department. The Guild's contention that the separation of the DUI charge from the "refusal to blow" charge is indicative of a flawed investigation is without merit under the facts of this case.

There was no convincing evidence proffered that proved the Department treated Grievant differently from any other employee who committed the same offense under the same or similar circumstances. Disparate treatment is an affirmative defense. As such, the Guild bears the burden of establishing that the punishment rendered to Grievant exceeded that of other employees who were in substantially the same circumstances. Your Arbitrator finds the Guild failed to present sufficient evidence to meet the burden of proving disparate treatment in this case. The Guild's evidence consisted of documentation and testimony from Deputy Kent who stated: "This administration has a pattern of making what I believe are fair and reasonable accommodations to many people ... in this case, I don't believe that they did." Tr., p.

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264. Deputy Kent gave examples of reprimands and suspension for various violations in the Sheriff's Department. None of these violations related to a Deputy Patrol Officer who was arrested for off-duty DUI, failed to submit to Breathalyzer testing and then lost full driving privileges for a one-year period. There is no evidence to indicate that the Employer's actions were arbitrary or that Grievant was somehow singled-out for punishment. The Guild failed to prove the punishment rendered to Grievant exceeded that of other employees who were in substantially the same circumstances.

I find the penalty of discharge was reasonably related to the seriousness of the offense committed by Grievant. The Employer has the right to determine levels of discipline. The Arbitrator's role in reviewing the appropriateness of the penalty imposed by the Employer is limited by the parties' CBA. The Arbitrator has no authority to act outside the parties' bargained-for agreement or to substitute his opinion for that of the Employer without proof that management exercised its discretion in an arbitrary, capricious, or discriminatory manner, or acted in bad faith. Your Arbitrator holds that there is not sufficient evidence to sustain such a finding in this case.

The Guild claims that the Employer's refusal to sign the ilL waiver was arbitrary and without legitimate basis and therefore the termination was without just cause. The Guild insists that had the Employer merely signed the ilL waiver, Grievant McEvoy could have continued to perform his job. The Guild argues that the Employer created a disability when management refused to sign the ilL waiver and then failed to make a reasonable accommodation for the disability it created. I do not agree with the Guild's analysis. The Sheriff's Office offered legitimate reasons for refusing to sign the ilL waiver. Chief Simpson testified:

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In a law enforcement environment it would be extremely difficult. It would require an officer to, one, not drive their car from their home to work. They would have to pick up the car somewhere else. They would have to have contact with their supervisor or someone to verify that they were okay to drive before they got into the car. There would have to be random checks, which is similar to what the interlock device does while the person is driving the car. There would have to be some way of being able to verify the person was not drinking and was not violating the conditions of the restricted license. It would be very impractical and difficult for a Sheriffs Office to do that.

There can be a lot of scenarios, such as emergency vehicle operation, how are you going to drive in an emergency situation and try to blow into a machine or verify that you're not drinking at the time. It would be quite a burden for the agency.

In addition to that, the agency, if it were to waive the requirement, would bring liability and additional civil exposure to the agency if there was a collision. If Deputy McEvoy was in a collision and there was a lawsuit that came out of that because of the fact there was an interlock device waived and he had been drinking or hadn't been drinking, the office would still have some liabilities and exposure to that lawsuit.

Tr., pp. 117, 118.

The Employer's decision to refrain from signing the ilL waiver was not

arbitrary, capricious, or made in bad faith. The Employer did not willfully restrict

Grievant's license and then refuse to allow the Grievant to drive. It was Grievant who

voluntarily and knowingly engaged in conduct that resulted in the revocation of his

license. Grievant did not have a disability requiring accommodations be made. The

County is under no obligation to service Grievant by permitting him to operate a work

vehicle, particularly a patrol car, under the restrictions imposed by an ilL.

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The Guild contends that the parties' CBA requires progressive discipline

be followed and that because Grievant was a first time offender, discharge is too harsh

a penalty. I do not agree. The contract provision governing discipline states:

4.04.11 DISCIPLINARY ACTION----The following types of disciplinary action may be taken at the discretion of the Sheriff against an officer or employee in cases where an allegation is found to be "sustained" or "other misconduct".

A) Verbal reprimand,

B) Written reprimand,

C) Change of assignment,

D) Loss of vacation, compensatory time,

E) Compulsory examination by a department physician,

psychologist, or psychiatrist,

F) Suspension without pay,

G) Reduction in rank,

H) Termination of employment.

The parties' contract gives examples of types of disciplinary action that may be taken.

Progression in rendering discipline is not mandatory under the express language of the

contract. The doctrine of progressive discipline does not demand that in every case,

every step of the process must be followed in an exact order. The facts and

circumstances of individual cases allow the Employer to bypass the normal progression

in discipline when appropriate. It is understood that some incidents of misconduct are

so severe that immediate discharge is appropriate.

The Employer took into consideration the fact that Grievant had no

previous related misconduct and that he had worked with the Department for almost ten

years prior to rendering the discipline of immediate discharge. The Grievant did not

testify at the arbitration hearing nor does the record reveal any compelling mitigating

factors that would justify Grievant's decision to refuse Breathalyzer testing during his

DUI arrest. Grievant worked as a law enforcement officer and understood the purpose

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for full access to information during a criminal investigation. He was aware that by choosing not to cooperate following his DUI arrest that he was risking his driver's license for an entire year. His job required that he engage in driving during approximately 50% of his typical workday. The driving required of Grievant as a law enforcement officer was so high risk that special training was mandated. Grievant's conduct on February 8, 2009, resulting in his license revocation was such that immediate discharge was justified.

The Guild asserts that the Employer violated the prohibition against double jeopardy and that the threat of further prosecution for the charge of DUI was being improperly held over Grievant's head. Your Arbitrator finds these arguments to be moot. Double jeopardy attaches once discipline has been imposed and accepted. There is no evidence that discipline for the misconduct alleged was already imposed and accepted at the time of this hearing.

Based on the record in this case, I conclude the Employer proved just cause for the termination of Brian McEvoy on July 17, 2009. I will enter an Award denying the grievance.

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AWARD

Having reviewed all of the evidence and argument, and having had the

opportunity to observe the demeanor of the witnesses, the Arbitrator concludes that

Kitsap County Sheriff's Office had just cause to terminate Grievant Brian McEvoy on

July 17, 2009. The grievance is denied and dismissed in its entirety. Pursuant to Article

1, Section F(3) the fees and expenses of the Arbitrator shall be paid by the Guild as the

party ruled against by the Arbitrator.

Respectfully submitted,

~~~

Arbitrator

Dated: August 24,2010

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