IBPO Wins Reinstatement for Connecticut Judicial Marshal
January 12, 2012
A Connecticut judicial marshal was ordered reinstated when an arbitrator ruled the employer had dismissed him as the result of a substandard investigation.
“If the judicial branch appropriately holds its marshals to a higher standard of behavior, then it should hold itself to that standard, too,” said Doug Hall, the IBPO attorney who won the case. “The skewed investigation the branch conducted certainly didn’t meet that standard, so the arbitrator reversed the dismissal.”
Background
Before serving as a judicial marshal for a decade, the grievant had served as an appointed special deputy for one of the state’s sheriffs. He was sworn in with as many as 30 other special deputies for a four-year term to match that of his employer, but never received paper documentation of his appointment. The grievant had performed supervisory duties on a per diem basis for about six months until he and the sheriff had a personal dispute unrelated to the job. The grievant was not given any assignments for the remainder of his term, but the sheriff never took the grievant’s badge or removed him from his appointed position.
Four years after his first swearing-in, another sheriff was elected. Once again, the grievant was sworn in as a special deputy, but this time, he received an appointment document. He kept his same employee number and never had to apply for the position, attend any training academy, or go through the procedures a “new” special deputy might.
The following year, an amendment to the state’s constitution eliminated all of the sheriff's departments. Special deputies responsible for transportation and custody of prisoners became marshals of the Judicial Branch.
Conflict over description of past service
The grievant spent a decade working for the Judicial Branch and had no record of disciplinary actions against him or negative performance reviews. In the spring of 2010, a dispute about his seniority led to a grievance (unrelated to this case). The marshal submitted a signed statement describing his appointment under the first sheriff and subsequent lack of assignments in that position.
Some months before that seniority grievance, the marshal had applied for supervising positions requiring several years as a marshal (or equivalent), and, for one of the positions, a year of general experience including “lead responsibilities.” The grievant listed his supervisory duties under the sheriff’s office, stated he worked 40 hours a week, and signed the applications.
The Judicial Branch terminated the marshal for misrepresenting his qualifications on the promotion applications. The IBPO grieved the matter and it went to arbitration.
Arbitration: Did employer meet “just cause” standards?
At arbitration, Hall discussed the accepted tests for determining whether an employer has just cause to terminate an employee and examined whether or not the Branch had met those tests. Among the highlights:
Was the grievant warned of consequences of his conduct?
Hall argued that the grievant had not been warned that discrepancies on various applications and statements could lead to his dismissal. He cited state law that described the special deputy position, including language that says the deputy retains the authority to perform his/her duties until removed from office only for just cause, and only after a hearing. It was reasonable, said Hall, for the grievant to consider himself a special deputy even without assignments, much the way someone out of work with an injury or deployed to military service would. Since the grievant had never received any discipline before, he had no reason to suspect that discipline in this case would be termination instead of progressive, corrective discipline.
Was the investigation conducted fairly and objectively?
No, argued Hall, and the burden of proof required for termination must be higher than that for less severe discipline. During an investigation, the grievant had explained his situation with the first sheriff and why he answered the application questions the way he had. A member of management found a certificate showing an 18-month appointment for the grievant under the first sheriff (a document the grievant said he had never received) and another showing a four-year appointment under the second sheriff, (which the grievant said he had received). Management did not produce any documents showing that the grievant had been dismissed from his special deputy position, nor could it find any certificate of appointment for nine additional special deputy sheriffs from the same court for the five year span in which the grievant held the same appointment.
How, asked Hall, could the branch find two certificates for the grievant and terminate him based on those pieces of paper, when they “curiously” could not find a single certificate for any of the others who held the same appointment in the same place at the same time?
Did the investigation produce substantial evidence or proof that the grievant was guilty as charged?
Hall argued that management did not produce substantial evidence that the grievant had intentionally lied on the applications.
Were the rules, orders and penalties applied evenhandedly and without discrimination?
A member of management testified that the branch had not terminated all employees found to be untruthful.
Conclusion
The arbitrator admitted that deciding this case was complicated by the the “unique” circumstances surrounding the special deputy sheriffs in the old county sheriffs system. He deemed the first of the grievant’s appointment documents invalid because it did not follow the law regarding special deputy terms, although he suspected the appointment form’s discrepancy was likely a clerical error. On the other hand, the grievant’s errors on the applications were significant, regardless of his intention or the understandable questions about defining his appointment under the sheriffs.
Ultimately, ruled the arbitrator, the Judicial Branch did not have just cause to remove the marshal. He found that the Branch’s investigation fell short and inappropriately colored management’s conclusions about the grievant’s behavior, and that there were relevant mitigating factors in the grievant’s behalf. He ruled that the grievant was to be reinstated and made whole for compensation, seniority and benefits, while his time off the job was to be recorded as a disciplinary suspension only.