IN THE MATTER OF THE ARBITRATION

BETWEEN

FRATERNAL ORDER OF POLICE )

LODGE 105, )
)
Grievant, )
v. ) FMCS No. 14-51541
) MARK BRUNING
)
CITY OF GUTHRIE, )
OKLAHOMA, )
)
Union. )

BEFORE: ARBITRATOR MARK L. REED

REPRESENTING FOP LODGE 105: R. SCOTT ADAMS

ADAMS & ASSOCIATES, P.C.
401 N. Hudson, Suite 100
Oklahoma City, OK 73102

REPRESENTING THE CITY OF ENID: TONY G. PUCKETT

JOSHUA A. CLINE
McAFEE & TAFT, P.C.
Tenth Floor, Two Leadership
Square
211 North Robinson
Oklahoma City, OK 73102

DATE AND PLACE OF HEARING: June 24, 2014 June 27, 2014
Guthrie, Oklahoma

POST-ARBITRATION HEARING SUBMISSIONS: September 16, 2014

INTRODUCTION

This Arbitration arose pursuant to the Agreement between FOP Lodge 105 (Union)

and the City of Guthrie (City). The parties have stipulated that the matter is properly before

the Arbitrator.

1
 STATEMENT OF THE CASE

The matter that gave rise to this arbitration relates to the arrest of Kyle White at the

instruction of Lieutenant Mark Bruning (Grievant) on September 7, 2013. Lieutenant

Bruning began working for the Guthrie Police Department in 1997. His record is that of an

accomplished veteran police officer with a good employment history, including

commendations and awards. Chief of Police Damon Devereaux characterized the Grievants

career as pretty distinguished. The Grievant is now married to Heather Bruning (formerly

White). Mrs. Bruning and Kyle White were married from May of 2010 to July of 2012. At

the time of the alleged misconduct, the Grievant and Heather were engaged. The personal

history between the Grievant, Heather Bruning, and Kyle White, will be discussed below

where necessary and relevant.

The incident occurred during an event hosted by the City of Guthrie. Guthrie was one

of several cities chosen by the British folk rock band Mumford & Sons, as part of the bands

Gentlemen of the Road tour. Guthrie is a community of approximately 10,000 residents and

the music festival was a big event for the city. Over the span of the weekend, an estimated

35,000 people attended.

Months of planning was done by the City, including the Police Department, in

anticipation of the event. The City made an effort to create a relaxed environment where

people could feel comfortable. It allowed people to camp in the concert area known as

Cottonwoods Flats or The Flats. The other venue designated for the weekend activities was

downtown Guthrie or Downtown.

2
 One of the actions taken by the City in anticipation of the event was to suspend several

city ordinances during the event, for example, loud noise and open container laws. Chief

Devereaux implemented a standing order, which was in place over the weekend, called an

Incident Action Plan (IAP), set forth below, directing officers to make arrests only as a last

resort. The Grievant has acknowledged that he had input in drafting the language of the

directive and he knew arrests were to be made only as a last resort.

To implement the IAP, a holding area was created with a five foot fence and zipped-

tied gates. One purpose of the holding area was in keeping with the general desire to be

lenient over the weekend regarding alcohol consumption but it was also a way to help ensure

officers would be available to respond immediately to situations that might arise, rather than

processing arrests. There is conflicting evidence regarding problems with the holding area on

the evening of September 7th, but officer testimony indicates that the holding area was used

that night, both before and after Whites arrest.

Between 10:00 and 10:30 p.m. on Saturday, September 7, 2013, Mumford & Sons

finished playing, and crowds of concertgoers were trying to leave the Flats. One of the exit

gates was located at 5th and Warner. This particular gate was about a street wide and

designated CID (concert ID) or handicapped only. There is officer testimony regarding

problems at the gate the night before and the fencing had been at least partially damaged.

On Saturday, the Grievant was group supervisor working the 7:00 p.m. to 7:00 a.m.

shift. At approximately 10:00 p.m., he received a call for assistance at 5th and Warner. He

and Heather, who had been sitting with him during the concert, drove over to the gate. The
3
Grievant attempted to block the gate with the Polaris they were in. After attempting to block

the gate, the Grievant began yelling to the crowd generally that the exit was CID,

Handicapped only. The other Guthrie officers present at or near the gate were Mark

Swartzbaugh, Jason Hamilton and Pottawatomie County Deputy William Wheeler. What

happened next is disputed, but according to the Grievant, a man named Nathan Covington,

who was intoxicated, approached the gate, while the Grievant was yelling CID and handicap.

When Covington didnt respond, the Grievant said you better move your ass or youre going

to go to jail. Apparently, at his wifes prompting, they turned the other direction and left.

Then Senator A.J. Griffin (accompanied by Trey Griffin, his friend Flash, and the Senators

friend Shelly Shelby) approached, also demanded to know why they couldnt use the gate.

Next, Kyle White approached the Grievant, and according to the Grievant, said why

the fuck can't we go through that gate? He answered the gate was CID and handicap. White

again said why the fuck can't we go through that gate? The Grievant then said Kyle, you

need to go (sic) that exit, but he just stood there like I said, and thats when I decided that I

felt that he needed to be arrested because we had a large crowd of people and they all said it,

its right, it could go south real quick. He wasnt following orders. He was drunk, I could

smell it. I could see his mannerisms. I've arrested hundreds of drunks, so I yelled across the

front of the Polaris, I just yelled it, I knew there were some guys over there, 1015 PI, and

that's when this deputy, and I didn't really know his name until after the fact, Wheeler, he

went out there, handcuffed him. Deputy Wheeler is the officer who actually handcuffed

4
White and took him to the Guthrie Police Department. Eric Lamb booked him at

approximately 2:30 a.m. and he was released at 6:15 Sunday morning.

Chief Devereaux became aware of what had happened when he received a phone call

from Senator Griffin about fifteen minutes after the arrest occurred on Saturday night.

Senator Griffin has known both the Grievant and Kyle White for many years. She thought the

Grievant arrested White for no reason and was aware of bad feelings between them, but

denies that she wanted the Grievant fired.

On September 9, 2013, Chief Devereaux received written complaints regarding the

arrest from Kyle White, Jill Ochs-Tontz, Senator A.J. Griffin, and Trey Griffin. On

September 12, 2013, Chief Devereaux placed the Grievant on administrative leave and served

him with the Investigation Notice, which alleged a violation of the Code of Ethics,

Administration of Laws, Courtesy; and Conduct Unbecoming. Along with the allegations of

misconduct, the notice identified potential witnesses to the incident that might be interviewed.

The notice also advised the Grievant he was to return all City property and not to enter city

property without the consent of the City Manager. The investigation conducted by Chief

Devereaux and Human Resource Director Jim Ahlgren included interviews with the

following: Grievant, Kyle White, Jill Ochs-Tontz, A.J. Griffin, Trey Griffin, Heather Bruning,

Shelly Shelby, Jason Hamilton, Mark Swartzbaugh, Michael Loya and Eric Lamb. Officer

Reggie Smith gave a written statement to the Chief about an incriminating statement he said

5
the Grievant made to him just after the arrest.1 A statement was provided by Deputy

Wheeler.

Pursuant to Article 26, Chief Devereaux sent the matter to a Disciplinary Hearing

Panel which consisted of Human Resources Director Jim Ahlgren, Lieutenant Gary Haddock

(the officer selected by the Chief of Police), and Jonathan Williams (the officer selected by the

Union.)

On October 4, 2013, Chief Devereaux issued a notice of Disciplinary Hearing. The

hearing was held on October 11, 2013. The Panel members asked questions of Chief

Devereaux and witnesses during the hearing. The Grievant was at the hearing and represented

by counsel.

Following deliberations, the Panel determined unanimously that Bruning should be

discharged, citing multiple violations of Police Department Policy. City Manager Sereniah

Breland upheld the determination of the Panel and Bruning was discharged.

HR Director Ahlgren prepared a letter of findings and a recommendation to Chief

Devereaux which stated:

1 The statement the Grievant allegedly made to Smith was Man, I had to arrest Heathers ex-
husband. This bitch thought he could punk me. He got loud because we wouldnt let anyone
through this exit, then asked why we cant let anyone throughtrying to punk me and I
arrested his ass for public intoxication. Bitch cant punk me, Ill put his ass in jail. I dont
know who he thinks he is. The Grievant denies making the statement.

6
Upon review and discussion of this situation and events it is the finding of the Disciplinary
Hearing Board that Lieutenant Mark Bruning acted improperly. Lieutenant Mark Bruning
acted insubordinately, improperly and unbecoming of an officer and violated the policies
listed in Exhibit A. Lieutenant Mark Bruning failed to follow the very orders he personally
emphasized to the department. It is believed that Lieutenant Mark Bruning did not set aside
his personal feelings but acted out of emotions to arrest Kyle White.

Recommendation

It is with full agreement of the Disciplinary Hearing Board that the situation of September 7,
2013 warrants disciplinary action. The Board recommends that Lieutenant Mark Bruning be
terminated from the employment of the Guthrie Police Department.

Chief Devereaux accepted the recommendation and forwarded it to City Manager

Sereniah Breland, who upheld the Hearing Panels determination. Chief Devereaux sent a letter

to the Grievant advising him of his termination which became effective on October 21, 2013.

This grievance was filed on November 8, 2013.

ISSUE

The City proposed the following issue: Whether the discharge of Bruning violated the

CBA? The Grievant proposed the issues as: (1) Whether the discharge of Mark Bruning was

for just cause; (2) Whether the conduct alleged warranted discharge; and (3) Whether the

procedure followed by the Employer in deciding to terminate him violated the contract and

provided him a fair proceeding.

The arbitrator frames the issue to be: Was the termination of the Grievants

employment for just cause? If not, what is the appropriate remedy?

7
 RELEVANT CONTRACT, CITY POLICIES AND PROCEDURES,
AND INCIDENT ACTION PLAN LANGUAGE

COLLECTIVE BARGAINING AGREEMENT

ARTICLE 6

MANAGEMENT RIGHTS

Section 1. Except as otherwise specifically provided in this Agreement, the City has the sole
and exclusive right to exercise all the rights or functions of management. Without limiting the
generality of the foregoing, as used herein, the term "rights of management" includes:

***

F. The right to inquire, investigate, act upon and review the performance or
non-performance of actions, activities, responsibilities and duties of all Unit
members.

G. The right to correct inappropriate employee behavior and/or unsatisfactory

job performance and discipline, up to and including, discharge, demotion,
suspension, and other discipline outlined in the disciplinary procedure set out in
City po1icy and pursuant to the City Charter.

H. The discipline procedure shall remain as spelled out in paragraph G above.

However, the City has the right to establish in writing, Police Department rules,
regulations, procedures and policies compliance with which shall be used in
determination of appropriate behavior and/or performance, and from time to time
make changes to those rules, regulations, procedures and policies.

I. The right to establish in writing promotion requirements, to promote those

employees based on qualifications relevant to those requirements and to maintain
a posted list of test scores for a period of one (1) year.

8
 ARTICLE 20

PERSONNEL FILES

Section 1. The employer agrees that if materials concerning investigations, complaints,

reprimands, counseling for violations of any rules, regulations, policies, or other materials that
might be considered for future possible personnel disciplinary actions, are to be placed in the
individual personnel files, the affected employee shall be notified of such action in writing
and the affected employee shall acknowledge receipt of such notification in writing for
inclusion in his/her file.

***

ARTICLE 26

DISCIPLINARY PROCESS

Section 1. The proceeding sections apply only to administrative complaints that are not
being criminally investigated with the exception of Section 3 of this article. The process for
investigating and processing criminal charges is outlined in the Policy & Procedural manual.

Section 2. The City of Guthrie and all management personnel shall treat members
professionally, without discrimination, bias, hostility, racism or any threatening conduct,
which promotes, allows, creates or promulgates a hostile work environment. The City of
Guthrie shall not discriminate against any member covered by this agreement for their
connection, affiliation, participation, or activity in behalf of the Fraternal Order of Police,
pursuant to the provisions established in this agreement.

Section 3. The FOP recognizes complaints against members may occur and that the City has
a responsibility to investigate and respond to such complaints. Complaints on their face may
warrant taking a disciplinary action if the supervisor determines upon reading the complaint
that a violation of Policy or Rules and Regulations has been violated. In-car video will only be
reviewed and/or used for possible disciplinary actions if a complaint, signed or unsigned has
been received as established in this article. If such action is required, the member shall be
9
notified in writing no later than two business days by the supervisor upon the supervisor
receiving the complaint, regardless of any proceeding criminal investigation.

Section 4. The member shall receive a written notice that a complaint has been filed and a
copy of the actual complaint document(s) including a description or name of the member
alleged, with the complete and specific nature of the allegation with the complainant's
signature. For the purpose of this agreement, a "complaint" shall be defined as a written
document containing specific allegations of wrongdoing or a violation(s) of law against a
member by the specific alleged victim of misconduct, wrongdoing or illegal activity.
Members will be informed and provided with said information each and every time a
complaint is filed against them.

Section 5. Initial preliminary discussions with the supervisor delivering the complaint shall be
strictly limited to giving written notice to the member of the complaint received and providing
documentation to the member as established in Section 4 of this article. The initial
preliminary discussions shall not include questioning or require oral or written response by
the member about the complaint(s).

Section 6. All interviews shall be conducted in accordance with the Garrity Rule and the
Weingarten Ruling. Whenever it is requested that an employee place his/her signature upon
any document or report for disciplinary action, it is understood that said employee is merely
acknowledging receipt of said document and does not indicate whether or not the employee
agrees or disagrees with the document, report or disciplinary action.

Section 7. All questions asked during the investigation shall be limited in scope to
activities, circumstances, or events that pertain to the Officer's alleged conduct or acts, which
form the basis of the investigation. The member shall be recorded by the manner chosen by
the investigator.

Section 8. The member being questioned, interviewed or interrogated shall not be

subjected to offensive language or threatening statements. No promise or reward shall be
offered to a member as an inducement to obtain testimony or evidence.

10
Section 9. The member being questioned, interviewed or interrogated, shall be informed
of all his/her rights pursuant to this procedure, prior to the commencement of any questioning
and of responsibilities to answer all questions

Section 10. The member shall upon request be represented by a Lodge representative, (the
President, Vice President, or designee), attorney or any other applicable representative the
Lodge names and shall have them present at all times, prior to, or during any questioning,
interviews or interrogations.

Section 11. The Lodge Representative will not enter into the conversation, but will
maintain the right to object to any questions outside the scope of the investigation, any
abusive/threatening language or gestures, any contractual or rights violations, as well as
counsel the member.

Section 12. If at any time during the investigation it becomes likely criminal charges may
result during an investigation, all steps of this procedure will be halted and an investigation
under the Policy and Procedures may ensue. The Chief of Police shall decide if the member is
to remain at work or be placed on administrative leave with pay until such time a decision is
made to proceed solely with an administrative hearing, or criminal charges are sought.

Section 13. No member shall ever be disciplined, demoted, denied promotion, transferred,
reassigned, discharged or otherwise discriminated against in regard to the member's
employment or threatened with any such treatment, by reasoning of the member exercising
his/her rights granted in this article. Any and all disciplinary actions must be for just cause"
and be properly documented as set forth by this Article and pursuant to this Agreement. For
the purposes of this Agreement, "For the good of the service and Just cause" shall be as set
forth in the Mathis ruling (OK Supreme Ct. 91,397), and be defined equally, carrying the
same burdens. Regardless of terminology, all provisions of this agreement shall apply.

Section 14. For possible disciplinary actions arising from citizen complaints, or alleged
policy violations of the City of Guthrie, or Police Department by fellow employees/City
Government officials, the following procedures will be followed;

(1) If a complaint is received that is unsigned, the member will be notified by his
supervisor, Deputy Chief or the Chief that an unsigned complaint has been made
against them and asked his/her recollection of events. No disciplinary action will be
initiated against a member on an unsigned complaint.

11
(2) Upon receiving a signed complaint, the members supervisor shall inform the member
that a further investigation of the complaint may take place. At the end of the twenty-
business day period, following notification that a complaint has been filed, the
member will be officially notified whether there will or will not be disciplinary action
taken against him/her.

A. If, in the supervisor's determination, the matter can be corrected through a

verbal warning, retraining, or written reprimand, then the supervisor's action will be the end
of the matter.

B. However, if the supervisor determines the behavior is serious enough to

warrant possible punitive discipline such as; loss of pay, demotion, suspension, or
reassignment, the supervisor will request a hearing notice be issued.

II. Disciplinary Hearing

a. Within 15 business days of determining a possible policy violation has occurred that
could result in a loss of pay or employment, the supervisor shall request of the Chief
that a Hearing Notice be issued and a Hearing Panel be appointed. The employee does
have the option to wave his or her rights to a hearing if he or she so chooses.

b. The Hearing Notice shall contain the date, time, place of the Hearing, who the Chair
of the panel shall be and have an exhibit "A" attached.

c. Exhibit "A" shall contain the exact policy alleged to be violated, the date of the event
in question, complete witness list of the City, all evidence that will be submitted, and
any other information necessary to inform the member exactly what will be discussed
during the hearing.

d. In the event that as part of, or during an investigation of a member, a hearing review
panel is convened, it shall consist of three members. One member shall be chosen by
the Chief of Police, one member shall be chosen by the Lodge President and the Chair
shall be the Human Resource Director for the City of Guthrie. Exempted members of a
hearing review board are: the Chief of Police, the Lodge President and any other
person not represented by the Bargaining Unit (except the HR Director). Regardless of
rank, standing or command status, members of an Hearing Board shall be considered
as equivalent peers and shall not be subjected to any behavior from one another that is
not consistent with this article and pursuant to this agreement.

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e. The Hearing will take place within fifteen working days of the Notice. The Chief will
decide if the officer is to remain at work during this period or if the officer should be
on administrative leave with pay" during this period. The hearing may be delayed by
the officer for up to 2 weeks from the original date of hearing. However, if the officer
is on administrative leave with pay, the pay will end at the end of the 15 business days.
The officer may elect to use vacation pay for the added delay time.

f. The member may be represented by legal council at the hearing at his/her own
expense and will notify the chairperson within forty-eight hours if he/she elects to
have legal council.

g. During the hearing, the panel may ask the member questions, require statements from
a supervisor, will require witnesses to testify, review the member's personnel file and
present any other evidence/persons relevant to the process.

h. The member may offer witness, or written documentation of his/her actions and
present any other evidence/persons that are relevant to the process. The member may
not ask questions of the witness but may respond to their statements. The member's
council may ask questions to all relevant persons.

i. All findings of the Hearing Review board shall be submitted directly to the Chief of
Police, with a copy to the Lodge President and member, within five business days. If
the panel feels that not all information was available or received at the Hearing, the
panel may delay their report until such time as the information is received, but the
member under review will remain on, or be returned to administrative leave with pay
during this time period. The Chief, member and Lodge President shall be notified of
the delay and the approximate date the panel's recommendation will be delivered.

j. The Chief shall review the recommendation of the Panel and barring any information
that was unknown to the panel, shall follow the recommendation of the panel.

k. If the member or Lodge does not accept the disciplinary action recommended by the
panel and approved by the Chief, a grievance may be filed in accordance with Article
21 of this contract.

13
 POLICE DEPARTMENT POLICIES AND PROCEDURES

GENERAL RULES AND REGULATIONS OF CONDUCT

4.06 ADMINISTRATION OF LAWS:

Employees shall administer the law in a courteous, fair, just, impartial and reasonable
manner, affording no one more reasonable treatment than others. Employees shall
realize the limitations of their authority and at no time use the power or influence of
their office or position for their own personal advantage.

4.15 COURTESY/SEXUAL HARASSMENT/RACIAL DISCRIMINATION:

Employees shall be courteous to the public and fellow employees. Employees shall be
tactful in the performance of their duties, shall control their tempers, exercise patience
and discretion and shall not engage in argumentative discussions even in the face of
extreme provocation. In the performance of their duties, they shall not use coarse,
violent, profane, or insolent language or gestures

***

SPECIFIC RULES AND REGULATIONS OF CONDUCT

5.01: CONDUCT UNBECOMING:

Employees shall conduct themselves at all times, both on and off duty, in such a
manner as to reflect most favorably on the Department. Conduct unbecoming an
officer shall include that which brings the Department into disrepute, or reflects
discredit upon the officer as a lady/gentleman or which impairs the operation or
efficiency of the Department or the officer.

5.04 COURTESY:

Employees shall be courteous to the public and other employees of the Department
and City. They shall be tactful and considerate in the performance of their duties,
shall control their tempers and exercise the utmost patience and discretion, and
should not engage in argumentative discussions, even in the face of extreme
provocation. In the performance of their duties, they shall not use coarse, violent,
insulting, profane, or obscene language or gestures and shall not express any

14
 prejudice concerning race, religion, politics, national origin, lifestyle or similar
characteristics.

5.30 INSUBORDINATION:

Employees shall promptly obey any lawful and reasonable orders by a superior officer.
(This will include orders relayed from a superior officer by a member of the same or
lesser rank.) Employees shall not assault or threaten any superior officer or use
abusive, mutinous, insolent or disrespectful language or manner toward any superior
officer while in the execution of his office.

GUTHRIE POLICE DEPARTMENT CODE OF ETHICS

***
I will never act officiously or permit personal feelings, prejudice,
animosities, or friendships to influence by (sic) decisions. With no compromise
for crime and with relentless prosecution of criminals, I will enforce the law
courteously and appropriately without fear or favor, malice, or ill will, never
employing unnecessary force or violence and never accepting gratuities.

***

INCIDENT ACTION PLAN DIRECTIVE

Arrests will only be made after all options have been exhausted. If any arrest is made

contact a Guthrie PD Officer and they will process the arrest. Administrative arrest: A

temporary holding facility will be located in the area where Command One is and will be

manned with GPD personnel. This is more of a time out area or detox center. Individuals

will not receive formal charges.

15
 POSITION OF THE PARTIES

CITYS POSITION

The City argues that the decision to discharge the Grievant was for just cause and

should be upheld. The Grievant committed serious misconduct when he arrested Kyle

White for personal reasons and in violation of the Incident Action Plan ordered by the Chief

of Police. The investigatory process which was provided under the CBA was thorough and

fair. The Recommendation of the Hearing Panel was based on credible evidence and in light

of that evidence, the decision to terminate the Grievants employment was appropriate.

UNIONS POSITION

The Union sets forth numerous reasons why the Grievants termination is without just

cause. Going directly to the charge of misconduct, the Union argues that the Grievant did

nothing wrong. He was only attempting to keep the CID and handicap gate from being

overrun, as it had been the previous night. When Kyle White approached him, he was

intoxicated, using profanity and demanding to know why he could not go out that way. White

would not comply when he was repeatedly told by the Grievant it was a restricted gate and to

exit at a different location. Police officers are required to use their own judgment and when

he called out to have White arrested, he thought he was doing the right thing.

The Union speculates that Chief Devereux was pressured by Senator Griffin and City

Manager Breland to fire the Grievant the same night the arrest happened, and under pressure,

made up his mind to terminate the Grievants employment before he even investigated the

16
alleged misconduct. The subsequent investigation and hearing panel were simply a cats

paw for a desired pre-determined result and the panel then rubber stamped the

investigative findings.

The Union alleges multiple procedural and substantive due process violations

throughout the proceeding, including alleged breaches of the CBA, arbitral, and common law

principles.2

DISCUSSION

Given the nature of the charges and the severity of the penalty imposed, the arbitrator

finds that the burden is on the City to prove by clear and convincing evidence the decision to

terminate the Grievants employment was for just cause. In determining whether the City has

met its burden, the appropriate inquiries are whether the Grievant engaged in behavior

warranting the discipline, and if so, was the discipline appropriate in light of all of the

relevant circumstances. See Elkouri & Elkouri, How Arbitration Works, 15-23 (7th ed. 2012).

The CBA states in Article 26, Section 13 that For the purposes of this Agreement,

"For the good of the service and just cause" shall be as set forth in the Mathis ruling (OK

Supreme Ct. 91,397), and be defined equally, carrying the same burdens. Regardless of

terminology, all provisions of this agreement shall apply. To this arbitrator, the rule in

2 The Unions argument that Chief Devereaux did not have the authority to place Grievant on administrative
leave during the investigation does not comport with the plain language Article 26 of the CBA, above.
17
Mathis simply states the widely accepted principle that just cause requires discipline be issued

in a manner that is not arbitrary and capricious.

ALLEGED MISCONDUCT

The Disciplinary Hearing Panel found the Grievant acted improperly and in a manner

unbecoming of an officer when he arrested White for personal reasons. The Grievant denies

the arrest was personal. He argues that it was a proper use of his discretion in maintaining a

secure setting and he stands by his decision.3 He further contends that he didnt violate the

IAPs directive to make arrests only as a last resort because he believed Whites behavior

might incite others to overrun the gate and he had no other alternative but to arrest him.

Little guidance was provided by witness testimony regarding the exchange that

occurred between the Grievant and White at the gate. There were similarities yet important

differences in each version of events. On the other hand, the consistency in police officer

testimony regarding the other options that were available to the Grievant is strong evidence

against him. Officers Hamilton, Swartzbaugh, Lamb, and Smith all provided credible

testimony regarding the alternatives to arrest. The holding area was one alternative, and also

offering the choice between jail and the holding area similar to when the Grievant said to

Nathan Covington move your ass or youre going to go to jail. Enlisting the assistance

3 Regarding the charge of Insubordination, the Union has alleged a due process violation because the
City failed to bring this charge until after the investigation. The evidence shows that the Grievant was
not provided notice of the additional charge until October 7, 2013, just days prior to the hearing. Such
late notice was not adequate to allow the Grievant time to prepare of a defense. As such, the charge
was improper and will not be considered by the arbitrator as a charge against the Grievant. That does
not in any way change the fact that Chief Devereauxs directive on September 7, 2013, was to use
arrest only as a last resort.
18
of friends of intoxicated concertgoers and taking away concert wristbands were also options

being used to void making arrests. The evidence shows that the Grievant did not attempt any

alternative before he arrested White and other options were available. That finding alone

means that the Grievants actions were in violation of the Chief Devereauxs directive. The

IAP violation however is not the alleged misconduct at the core of this matter. The Grievant

is also charged with using his police power for his own personal reasons when he arrested

Kyle White. Again, consistent police officer testimony is helpful. Officers Hamilton,

Swartzbaugh, Loya, Haddock, and Williams all testified generally that it is best to try to have

someone else, e.g., another officer, take over or handle a situation if there is personal

involvement.

The Grievant claims that he has no involvement or history with Kyle White and the

arrest was not made for personal reasons. The evidence contradicts his denial. The first time

the men met was in July 2012 at public park in Guthrie. The Grievant and Heather Bruning

(formerly White) were having lunch when White approached them. White shook hands with

the Grievant but yelled at Heather. The Whites divorced that month. Sometime later, White

sent the Grievant an email accusing him of having an affair with his wife. The Grievant

responded that he didnt know where White got his information but he should back the fuck

off. The Grievant argues that since the email was initiated by White it shows that it was

White, not the Grievant, seeking confrontation. That may be true but it also lends heavy

support to the contention that the Grievant made this arrest for personal reasons.

19
 Based on the evidence presented, the City has shown that the Grievant violated the

Guthrie Police Department Code of Ethics, and the Departments Policies and Procedures as

set forth above and as the City correctly argues, the use of police power for personal gain is

just cause for discharge.

FAIR INVESTIGATION

Industrial due process requires management to conduct a reasonable inquiry or

investigation before assessing punishment. Procedural fairness requires an employer to

conduct a full and fair investigation of the circumstances surrounding an employees conduct

and to provide an opportunity for him to offer denials, explanations, or justifications that are

relevant before the employer makes its final decision, before its position becomes polarized.

See Elkouri & Elkouri, How Arbitration Works, 15-23 (7th ed. 2012).

Although the City attempts to portray the Grievant as ill-tempered and violent, there is

no documented evidence that he ever engaged in any such conduct on or off duty. The one

instance that is acknowledged by both parties was the encounter when the Grievant accused

Larry Williams of being a child rapist and Williams punched him in the face. The Grievant

acknowledged that it happened and that he was told by Chief Devereaux that there would be

an investigation of the incident. He denies that an investigation ever took place or that he

received a reprimand related to the incident. The City could not produce a signed copy of the

alleged discipline therefore the matter was not considered by the arbitrator.

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 For some reason, the HR Director equated the attitude of the Grievant being

discourteous and slamming his keys on his desk as an indication of workplace violence.

When asked by opposing counsel all of the times the Grievant had been violent toward a city

employee, he said he was not aware of any. He also said the Grievant had the potential to be

a workplace killer. (Tr. 823) and said that the reality has come to me that I could be harmed,

you know, and be killed. Ironically, during cross examination by Grievants counsel, but

you would agree with me that in Mark Brunings personnel file there is not one single

reference of him being violent or have the propensity for violence on any way, shape or

form? He replied, That would be my opinion.

It appears that a significant reason a less severe penalty was never considered was the

allegation that the Grievant has a propensity for violence. That was never charged against the

Grievant and based upon complete conjecture. There is not one iota of evidence in the record

to support that implication. City Manager Breland testified she would not allow an employee

into a secured area that showed hostility. The act of slamming ones keys on a desktop might

show frustration, but not hostility. She also said that a number of employees shared their

concerns about workplace safety, but could not base any of their concerns on verified actions

of the Grievant. However, when asked to tell the arbitrator all of the acts of violence he had

committed in the workplace, the City Manager was not aware of any. She also was not aware

of any people that he pulled his service weapon on:

Q: Youve heard of Haddock, youve heard of the chief, other individuals,

did they ever make a comment, you know, well he has a tendency to pull his
weapon?
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 A: I dont know if it was pull his weapon. It was tendency to fly off the
handle would be the phrase.

Q: Okay. But thats not going for the weapon, though, is it?

A: I dont - when I think about protecting my employees, flying off the

handle could mean grenade in a desk like yesterday in Oklahoma City.

When questioned further, she also admitted there was nothing in his personnel file

about the Grievant flying off the handle. She also testified that during the pendency of the

Grievants termination proceedings, she received a call from the Logan County Sheriff asking

her if she owned a weapon because he was concerned for her safety and if the Grievant saw

her in public, he would try to intimidate her. She testified that about nine months prior to the

instant matter she received a telephone call from the former mayor of the city. Apparently, a

conversation could be heard in the background of a woman, identified as Kyle Whites

mother, complaining that the Grievant was harassing her son. The City Manager asked the

former mayor if the mother would sign a complaint, but she refused and nothing came of the

matter. The City Manager was also greatly concerned by the notoriety of social media

surrounding the incident and the impact it was having on the community

For instance, the testimony of two vital decision makers clearly indicates there was a

bias against the Grievant throughout the proceedings to terminate the him. First, both the City

Manager and the Human Resources Manager made statements that were highly inflammatory,

specifically, Grievant has propensity for violence. No evidence was ever presented at the

arbitration, or any other time for that matter that he had ever engaged in violent behavior.
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Granted, he was a hothead at times, but no documentation exists showing he ever engaged

in a physical altercation. He admitted he called Mr. Williams a child rapist. However, it was

Williams that assaulted him. Second, it is entirely inappropriate to imply or accuse the

Grievant of having the potential for workplace violence. For the Sheriff of Logan County to

make a statement that the City Manager should carry a weapon, without any supporting

evidence is simply ridiculous. Lastly, how can the Grievant be compared to someone having

a grenade in their desk drawer? The apparent attempt to use fear-based hypothetical events

against the Grievant did not bolster the Citys case against him.

DISCIPLINE

The City established by clear and convincing evidence that the Grievants conduct

warranted punishment, up to and including termination. However, the arbitrator finds both

parties are at fault in this matter, the Grievant for exercising poor judgment and abuse of

power, and the City Manager and Human Resources Director for being influenced by

allegations without any verification. The result was an unfounded and unacceptable bias

against the Grievant during the investigation and decision making process. The City Manager

and the Human Resources Director acted in a way that was arbitrary and capricious, therefore

the Disciplinary Hearing Panels finding that there was just cause for the decision to terminate

the Grievants employment cannot stand.

The Grievant had been employed with the City since graduating high school. During

his tenure of employment, he has received a number of awards and recognized for his

involvement in apprehending child molesters and pedophiles. There was nothing documented
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in his personnel file to show prior discipline. To stigmatize him with the reputation that he

has a propensity for violence in the workplace would have the potential for impacting any

future employment in law enforcement. Roley v. Pierce County, 869 F.2d 491 (9th Cir.

1989).

There is an old axiom in employee and labor relations that discipline is to be

corrective, rather than punitive in nature. Suspensions are corrective measures designed to

restore the employee to an acceptable level of behavior. Red Cross Blood Serv., 90 LA 393,

397 (Dworkin, 1988).

AWARD

The grievance is sustained in part. The arbitrator finds that the Grievant conduct

warrants severe discipline, however, the unfair bias created during the pendency of the

disciplinary proceedings and his length of service, support mitigation of the penalty. The City

is instructed to place him on a suspension without pay status effective October 22, 1913, for a

period of six (6) months and upon the expiration of the six (6) months period, reinstate him to

his former position as Lieutenant.

________________________________ ________________________
Mark L. Reed Date

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