...[Former Yakima Police Officer Mike] Rummel recently lost a final appeal in the state court for reinstatement to the force.... A Vigil service will be held at 6:00 p.m. Wednesday, February 4, 2009 at the Keith & Keith Ninth Avenue Chapel. Mass of Christian Burial will be celebrated at 10:00 a.m. Thursday, February 5, 2009 at St. Paul Cathedral. Concluding services and burial will follow at Calvary Cemetery. In lieu of flowers, memorial contributions may be sent to the Ryan Rummel Education Fund in care of Spokane Teacher's Credit Union, P.O. Box 1954, Spokane, WA 99210-1954, or Keith & Keith Funeral Home.... INVESTIGATION CONTINUES INTO THE DEATH OF FORMER YAKIMA POLICE OFFICER
KNDO - KNDU
Feb 2, 2009 05:49 PM
YAKIMA, Wash-- Investigators are looking into the death of former Yakima Police Department Officer Michael Rummel. Rummel died of a self-inflicted gun shot wound to the head. His death has left a tight-knit family and community reeling. "[He was] fun loving like a second brother, him and my brother were best friends," said Machelle Gifford. Gifford, a family friend, said Rummel never fully recovered from the legal battle he had with the City of Yakima. He was fired from the police department back in 2005 and had a tough time handling the scrutiny. Rummel was driving a white Ford Taurus Sunday afternoon when a state trooper attempted to pull him over. "When he (the trooper) noticed the approaching vehicle oncoming across the center line and nearly strike his patrol car that certainly got his attention. So he turned around on that car not knowing who that driver was or any idea who that driver could possibly be," said Sgt. Ed McAvoy, Washington State Patrol. According to state patrol, Rummel then lead the trooper on what McAvoy called "highway speeds" to a home on Campbell Road. THere he showed the trooper a 9 millimeter glock and turned the gun on himself. "Alcohol was found at the scene in the car," said McAvoy... Washington State Patrol will be handling the investigation into Rummel's death. Rummel was 41 years old when he died. He leaves behind an ex-wife and son. [Full article here]
CITY LEADERS REACT TO EX-OFFICER'S SUICIDE
www.kimatv.com
By Steve Wellman
Feb 2, 2009
[Excerpts] It was a heart-wrenching scene confronted by officers from at least three agencies. Former Y.P.D. cop Mike Rummel, dismissed from the force in 2005 after problems with alcohol and other issues - now dead. Rummel shot himself in his own car in front of his house after a brief pursuit by a W.S.P. trooper. Lt. J.W. Keightley of the Washington State Patrol says "The trooper exited his vehicle and was in the process of giving the suspect verbal commands from a point of safety the person didn't react to those commands.” Minutes earlier the trooper reported Rummel's car nearly crashed head-on into his patrol vehicle. A brief pursuit followed with Rummel waving a gun out the window. Then only seconds after Rummel pulled into his own driveway, the trooper heard a single shot The day after the suicide, City Manager Dick Zais is saddened and surprised Rummel's life would end this way. "The death of former Yakima Police Officer Mike Rummel came as a major shock to us," says Zais. He continues, "This had to have been a very troubled young man and despite all the issues he went through here no one would have wanted to see him lose his life” Rummel recently lost a final appeal in the state court for reinstatement to the force. His struggles with alcohol and depression were well documented... [Full article here]
TROUBLED FORMER OFFICER COMMITS SUICIDE
Mike Rummel, fired in 2005, kills himself after police pursuit
Yakima Herald-Republic
Mark Morey mmorey@yakimaherald.com
Feb 02, 2009
[Excerpts] A fired Yakima police officer who had gone through several years of legal battles in an attempt to regain his job shot himself to death Sunday afternoon after a police pursuit, authorities said. Mike Rummel, 41, died at the scene on Campbell Road outside of Toppenish. Rummel was fired in 2005 after police administrators ruled that he violated a last-chance agreement related to a drunken driving arrest in 2002. Although described by a former supervisor and police union official as a good officer, Rummel had dealt with depression and alcohol use, according to legal filings. Rummel's death followed a pursuit that started about 1:45 p.m., when state Trooper Corey Kingman was nearly hit head-on by a white Ford Taurus in the area of Fort Road and Lateral A Road, said Lt. Jim Keightley of the Washington State Patrol. Kingman turned his car around and began pursuing Rummel's vehicle at speeds between 60 and 75 mph, Keightley said. The chase ended at 7801 Campbell Road, about a mile south of Fort Road and seven miles west of Toppenish, when Rummel pulled into the driveway of a home there. Kingman, who took a protected position behind his car, began issuing commands to the driver when he saw a pistol and heard gunfire, Keightley said. Rummel died in the car, where alcohol containers were found, Keightley said. He had been living at the home. Keightley said no obvious indication of motive was found at the scene. Patrol detectives and Yakima County sheriff's deputies were investigating. Union leaders had fought to bring Rummel back on the force, saying that Chief Sam Granato retaliated against the union's resistance to random drug testing by firing Rummel. During the dispute, Granato said he had offered to help Rummel as much as possible through treatment but denied any retaliation. City officials said the last-chance violations ultimately led to his dismissal. About four years ago, he was accused of flashing his badge to enter a bar and of being insubordinate by calling his then-girlfriend, who works in the city's 9-1-1 dispatch center... Rummel's legal battles had recently taken another turn against him. The state Court of Appeals last month ruled that the city was justified in firing Rummel... "We're definitely saddened by Mike Rummel's death, and our condolences go out to his family and friends," city spokesman Randy Beehler said Sunday night. Rummel worked for the Yakima Police Department for about five years. He had been a Selah police officer before that. [Full article here]
YAKIMA HERALD OBITUARY:
MICHAEL JOSEPH RUMMEL
Keith & Keith Funeral Home
Published: Wednesday February 04 2009
[Excerpts] Michael Joseph Rummel, 41, passed away at his home in Toppenish on Sunday, February 1, 2009. Mike was born on November 7, 1967 in Yakima, Washington to Robert and Mary Lou Rummel, the second youngest of seven children. After graduating from Highland High School, Mike attended Washington State University where he graduated with a degree in criminal justice. He worked at the Yakima County Jail as a corrections officer for five years. He then joined the Selah Police Department and attended the Police Academy where he graduated first in his class. After working several years for Selah, Mike joined the Yakima Police Department where he proudly served the city of Yakima until 2005... A Vigil service will be held at 6:00 p.m. Wednesday, February 4, 2009 at the Keith & Keith Ninth Avenue Chapel. Mass of Christian Burial will be celebrated at 10:00 a.m. Thursday, February 5, 2009 at St. Paul Cathedral. Concluding services and burial will follow at Calvary Cemetery. In lieu of flowers, memorial contributions may be sent to the Ryan Rummel Education Fund in care of Spokane Teacher's Credit Union, P.O. Box 1954, Spokane, WA 99210-1954, or Keith & Keith Funeral Home. [Full obituary here]
City of Yakima, Decision 9451-B (PECB, 2007)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
CASE 19741-U-05-4998
DECISION 9451-B - PECB
DECISION OF COMMISSION
YAKIMA POLICE PATROLMEN'SASSOCIATION,
Complainant
vs.
CITY OF YAKIMA
Respondent
...The facts surrounding Officer Rummel's termination and the subsequent discrimination claim are intricate and complex as a whole, but can be broken down into the following sequence:
In August of 2002, Rummel was stopped by Yakima Police Officers and charged with driving under the influence of alcohol. At the time of his arrest, Rummel acted in a non-compliant manner towards the officers who stopped him. The arresting officers escorted Rummel home, and warned him not to operate a vehicle under his current state of intoxication. Shortly thereafter, Yakima Police officers again observed Rummel operating a motor vehicle... It appears from the record that both arrests for driving under the influence occurred on the same day.
Following an internal investigation which determined that Rummel violated several employer policies, Rummel signed a "Last-chance" agreement...
In late 2004, the supervisor to [S.U.], a co-worker of Rummel's who worked in the dispatch center, filed a complaint against Rummel alleging that Rummel made several "harassing" phone calls to [S.U.]. Rummel and [S.U.] were involved in a relationship. Recordings of the phone calls indicated to the employer that Rummel was potentially suicidal. Captain Greg Copeland, Rummel's immediate supervisor, took steps to have Rummel undergo a mental health evaluation at that time.
On October 31, 2004, Yakima Police officers responded to reports of a domestic dispute at Rummel's apartment involving Rummel and [S.U.]. Apparently, the two got into a disagreement while attending a Halloween party, and upon return to Rummel's apartment, Rummel was refusing to allow [S.U.] entry to retrieve her keys. Upon entering the apartment, Yakima Police Sergeant Wentz and [S.U.] observed Rummel loading a shotgun. They quickly retreated, and soon thereafter Copeland arrived at the scene. Copeland testified that he could tell that Rummel was intoxicated. Tr. 303:3.
Copeland and Rummel met on November 1, 2004, and Copeland ordered Rummel not to have any contact with [S.U.].
On December 7, 2004, Copeland, while interviewing [S.U.] about a possible violation of the no-contact order, learned from [S.U.] that, on December 6, Rummel contacted her at work. Copeland obtained a tape of that call, and concluded that Rummel violated the no-contact order...
Copeland was interviewing [S.U.] regarding a different potential violation of the no-contact order. However, evidence regarding this different incident was withdrawn by the employer.
Prior to a full investigation regarding the December 6 incident, Rummel's physician advised Copeland that Rummel was having difficulties eating and sleeping. The employer then placed Rummel on administrative leave and ordered him to undergo a psychiatric evaluation. The psychiatrist recommended that Rummel was able to return to work February 15, 2005, but also recommended 90 days of random alcohol testing for Rummel.
On February 16, 2005, the union filed a separate unfair labor practice complaint against the employer alleging that it had attempted to directly negotiate with an employee and breached its good faith bargaining obligation by failing to meet regarding a random drug-testing policy....
Read full item here.
[officer-involved domestic violence, funeral]
2009_0108 Rummel Opinion Information Sheet
ReplyDeleteCourt of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number:26799-7
Title of Case: City of Yakima v. Yakima Police Patrolmans Association, et al
File Date:01/08/2009
SOURCE OF APPEAL
----------------
Appeal from Yakima Superior Court
Docket No:07-2-00237-4
Judgment or order under review
Date filed:12/24/2007
Judge signing:Honorable E Thompson Reynolds
JUDGES
------
Authored by Kevin M. Korsmo
Concurring: Stephen M. Brown
Teresa C. Kulik
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
James Michael Cline
Cline & Associates
1001 4th Ave Ste 2301
Seattle, WA, 98154-1119
COUNSEL FOR RESPONDENT(S)
-----------------
Rockney Leroy Jackson
Menke Jackson Beyer & Elofson LLP
807 N 39th Ave
Yakima, WA, 98902-6389
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
No. 26799-7-III
Division Three
CITY OF YAKIMA,
PUBLISHED OPINION
Respondent
v.
YAKIMA POLICE PATROLMANS
ASSOCIATION and MICHAEL
RUMMEL
Appellants.
Korsmo, J. -- Appellant Yakima Police Patrolman's Association (Union) seeks reversal of a superior court order vacating an arbitration award rendered during the grievance procedure following Michael Rummel's termination of employment with the City of Yakima (City). The trial court concluded that the arbitrator failed to properly apply the terms of a Last Chance Agreement between Mr. Rummel and the City. We agree and affirm the ruling below.
FACTS
Mr. Rummel was employed by the City as a police officer. In August 2002, officers stopped Mr. Rummel for driving while intoxicated. He was charged with driving under the influence of alcohol and later pleaded guilty to first degree negligent driving.
Following an internal investigation, Mr. Rummel received a 350-hour unpaid suspension and signed a "Last Chance Employment Agreement" (LCA). The Agreement required him to "comply with any and all Yakima Police Department Policy and Procedures and Yakima Police Civil Service Rules."
In October 2004, the manager of the City's 911 call center reported to the police chief that Mr. Rummel called the center to speak with call-taker Stacey Unglesby. Mr. Rummel and Ms. Unglesby were in a relationship. Mr. Rummel was on the telephone with Ms. Unglesby for 30 minutes and was distraught and crying. He also made comments suggesting he was suicidal. The call led Mr. Rummel's supervisor, Captain Greg Copeland, to meet with Mr. Rummel. He told Captain Copeland that he was having personal problems. Captain Copeland arranged for a mental health professional to meet with Mr. Rummel.
On October 31, police officers were dispatched to investigate a reported incident of domestic violence between Mr. Rummel and Ms. Unglesby. When officers entered Mr. Rummel's apartment, they observed him loading a shotgun. The next day, Captain Copeland ordered Mr. Rummel not to call or contact Ms. Unglesby while she was at work.
On December 10, Captain Copeland learned from Ms. Unglesby that Mr. Rummel had called her at work. Captain Copeland obtained a transcript of the call and initiated an internal investigation. Captain Copeland concluded that Mr. Rummel had disobeyed a direct order by calling Ms. Unglesby. Mr. Rummel was placed on administrative leave and ordered to undergo a fitness for duty evaluation with psychiatrist, Dr. Kathleen Decker.
Dr. Decker diagnosed Mr. Rummel as suffering from severe and recurrent major depression and alcohol abuse with a high degree of disturbance. Dr. Decker determined Mr. Rummel had a treatable condition and ordered him to abstain from using alcohol. She also recommended that he remain off-duty until his symptoms stabilized.
On February 17, 2005, Dr. Decker reevaluated Mr. Rummel and determined he was ready to return to work. Dr. Decker found his depression was in partial remission and his alcohol abuse was in remission. She recommended that Mr. Rummel continue taking anti-depression medication indefinitely, undergo 90 days of random urinalysis testing for alcohol, and undergo treatment if any test was positive.
On April 1, Mr. Rummel was accused of using his police badge to gain entry into a bar without paying the cover charge. After an internal investigation, it was determined that Mr. Rummel used his badge to enter the bar for personal reasons and that he had violated employer policy prohibiting police officers from using their badge for monetary gain.
On May 2, Captain Copeland recommended that Mr. Rummel be terminated. On June 2, Mr. Rummel was provided with a Notice of Pre-Termination Hearing, which stated that it was anticipated Mr. Rummel would be terminated for violating the LCA by contacting Ms. Unglesby at work and for the improper use of his position.
On June 10, the district court entered a one-year Order for Protection From Unlawful Civil Harassment against Mr. Rummel. The protection order restrained Mr. Rummel from being within 500 feet of Ms. Unglesby's residence and from entering her place of employment when she was present.
On June 16, the pretermination hearing was held. Mr. Rummel accepted responsibility for his telephone call to Ms. Unglesby and said that he had entered the bar only to "remove his friends." On July 1, Captain Copeland advised Mr. Rummel that he was being terminated and had until July 5 to resign. Mr. Rummel refused to resign and was given a Notice of Termination effective on July 7. The notice stated:
By your actions in violating Captain Copeland's directive to not contact Ms. Unglesby while on duty and by using your police badge as a sign of authority to gain a waiver of the cover charge at Johnny's Nightclub, you have violated provisions of the Yakima Police Department Rules and Yakima Civil Service Rules and therefore have violated the terms of the November 2002 Last Chance Agreement. As set forth in the Last Chance Agreement, the appropriate penalty for these new infractions is termination...
On July 25, the Union filed a grievance on behalf of Mr. Rummel alleging that the City did not have just cause for his termination. The grievance was denied and submitted to arbitration pursuant to the collective bargaining agreement between the City and the Union.
On December 5, Ms. Unglesby received a one-year Order of Protection from the superior court which found that Mr. Rummel committed domestic violence and ordered him to not come within 500 feet of Ms. Unglesby's residence or place of employment.
On January 5, 2007, the arbitrator issued his Opinion and Award to reinstate Mr. Rummel. The arbitrator found that Mr. Rummel's call to Ms. Unglesby was in violation of the order not to contact her at work, but was not sufficient to establish the call was a deliberate violation of the order he received from Captain Copeland. Instead, the arbitrator determined the call was an isolated occurrence which lasted only one minute, and was in the context of an emotional breakup of a long-term relationship. It was not a significant disturbance of the 911 call center such as had occurred during October 2005 [sic], and which led to the order not to call her while she was working. Moreover, the Grievant was, as Chief Granato apparently understood, suffering from severe psychological problems when he made the brief phone call to his girlfriend at work.
Arbitrator's Order at 37-38.
The arbitrator also concluded that Mr. Rummel did not improperly use his position when he entered the bar to remove his friends...
The arbitrator went on to find that the termination actually was sought in retaliation for the Union's refusal to withdraw an unfair labor practice claim. Determining that this was not a proper reason for termination, the arbitrator ordered that Mr. Rummel be reinstated. Arbitrator's Order at 40-43.
On January 25, 2007, the City filed a petition for a writ of certiorari in the superior court. The superior court accepted review and found the arbitrator erred when he determined that Mr. Rummel did not intentionally call Ms. Unglesby. The superior court stated Mr. Rummel's case rested on application of the terms of the LCA and there was no contention that his telephone call to Ms. Unglesby was accidental or inadvertent. Based on these reasons, the superior court overturned the arbitrator's decision and upheld the termination of Mr. Rummel's employment. The Union appeals.
The Union contends the superior court erred by vacating the arbitrator's award and concluding that the City had properly terminated Mr. Rummel's employment. It argues the court should have treated the arbitrator's decision as final and binding and that the court failed to apply an extremely deferential review to the arbitrator's decision. It also argues the superior court disregarded the arbitrator's findings and conclusions, a task that belongs only to the arbitrator. The City responds that the arbitrator exceeded his authority and jurisdiction by altering the terms and conditions of the LCA. It argues that in such circumstances, the arbitrator is owed no deference by the superior court.
"Review of an arbitration decision under the constitutional writ of certiorari is limited to whether the arbitrator acted illegally by exceeding his or her authority under the contract." Clark County Pub. Util. Dist. No. 1 v. Int'l Bhd. of Elec. Workers, 150 Wn.2d 237, 245, 76 P.3d 248 (2003). The purpose of the writ is to enable a court to determine whether the proceedings were within the lower tribunal's jurisdiction and authority. Id.
Labor arbitration awards are afforded great deference. United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 568, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960). When reviewing an arbitration proceeding in a labor dispute, courts will not reach the merits of the case. Clark County, 150 Wn.2d at 245. The common law arbitration standard
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[No. 26799-7-III - City of Yakima v. Yakima Police Patrolmans Ass'n, et al]
requires this extremely limited review. Id. The arbitrator is the final judge of both the facts and the law, and "no review will lie for a mistake in either." Carey v. Herrick, 146 Wash. 283, 292, 263 P. 190 (1928).
[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement.
United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960). So long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, the fact that a court is convinced he committed serious error does not suffice to overturn his decision. E. Associated Coal Corp. v. United Mine Workers of Am. Dist. 17, 531 U.S. 57, 62, 69, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000). When parties voluntarily submit to binding arbitration, they trade their right to appeal an arbitration award for a relatively speedy and inexpensive resolution to their dispute. Clark County, 150 Wn.2d at 247. Thus, binding arbitration awards are not subject to being vacated by courts, except in very limited circumstances. Id.
Here, in lieu of termination, the LCA required Mr. Rummel to comply with the following relevant terms and conditions: "i. Employee shall comply with any and all
8
[No. 26799-7-III - City of Yakima v. Yakima Police Patrolmans Ass'n, et al]
Yakima Police Department Policy and Procedures and Yakima Police Civil Service Rules." City Ex. 6. At the time of Mr. Rummel's termination, the City alleged that he had violated provisions of the General Rules and Regulations of the Civil Service Commission for Police and Fire Employees of the City of Yakima (General Rules) Section 1b and l, and the Yakima Police Department Policies and Procedures (Policies and Procedures) Section 7.03.00 requiring him to comply with "the order or direction of a supervisor" and "promptly obey any lawful orders of a superior officer." The central issue here, then, is whether the arbitrator deviated from his designated authority or from the issues submitted for arbitration in rendering his award.
The LCA provided a grievance procedure in the event of Mr. Rummel's termination. This provision stated in relevant part that:
In the event that the Employee fails to comply with this Agreement and his employment with the City is terminated, the Employee, to the fullest extent permitted by law, expressly waives and releases any and all rights to appeal, grieve, or otherwise challenge the appropriateness of his termination under this Agreement; provided, however, that the Employee retains the right to appeal/grieve the City's determination that he did not comply with the terms and conditions of this Agreement. Any such appeal/grievance shall be made in accordance with the Police Civil Service Rules or the grievance process provided in Article 7 of the applicable Collective Bargaining Agreement between the City and the [Union].
City Ex. 6.
Article 7 of the Collective Bargaining Agreement identified arbitration as the final
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[No. 26799-7-III - City of Yakima v. Yakima Police Patrolmans Ass'n, et al]
step in the grievance process and stated in pertinent part:
The arbitrator's decision shall be final and binding but the arbitrator shall have no power to alter, modify, add to or subtract from the terms of this agreement. The cost of the arbitrator shall be borne equally between the City and the Association. The City and Association will pay their own remaining costs of arbitration, including attorneys' fees, regardless of the outcome.
Joint Ex. at 8. No Washington court has considered a challenge to an arbitration award in
the context of a last chance agreement. Federal courts, however, have examined the precise issue here.1
In Coca-Cola Bottling Co. v. Teamsters Local Union No. 688, 959 F.2d 1438, 1439 (8th Cir. 1992), the union and employer entered into an agreement, which reinstated an employee on the condition that he would not commit any "offense of a similar and/or like nature in violations [sic] of Category A Rules and Regulations." After the employee violated several category A rules, he was terminated pursuant to the agreement. Id. The union then filed a grievance and the matter was submitted to arbitration. Id. The arbitrator found that while the employee had committed the rules violation, the discharge was unwarranted. Id. The district court vacated the award, however, and the Eighth Circuit affirmed. Id. at 1442. The Court held that "the arbitrator went outside the last
1 Washington courts have looked to federal case law for guidance in analyzing labor disputes. Clark County, 150 Wn.2d at 246.
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[No. 26799-7-III - City of Yakima v. Yakima Police Patrolmans Ass'n, et al]
chance agreement by rejecting the bargained-for remedy, notwithstanding his determination that a category A rules violation, a triggering event, had occurred." Id. at 1441. The Court emphasized that the arbitrator's determination of whether the "triggering event" had occurred deserved deferential review, but that once the arbitrator determined that the triggering event had occurred, he was obliged to follow the language of the last chance agreement. Id. at 1441-1442.
Similarly in Tootsie Roll Industries, Inc. v. Local Union No. 1, 832 F.2d 81, 82 (7th Cir. 1987), the union and employer agreed to a last chance agreement. The agreement stated that if the employee failed to meet a specified attendance level, she would be terminated "and the Union waives any right to file or pursue a grievance or other claim on her behalf." Id. After the employee missed work as a result of car problems and illness, she was terminated. Id. An arbitrator ordered the employee reinstated finding that her absences were the result of "extenuating circumstances." Id. at 83. The district court vacated the award, and the Seventh Circuit affirmed. Id. at 85. The Court explained that once the arbitrator determined that the employee violated the attendance requirements of the last chance agreement, "the waiver clause of the agreement renders [the Union]'s grievance not arbitrable." Id. at 84. The Court
emphasized that even though the terms of the last chance agreement might be "very
11
[No. 26799-7-III - City of Yakima v. Yakima Police Patrolmans Ass'n, et al]
harsh" or "unreasonable," "the parties agreed to it and the contract is exactly what it purports to be -- a 'last chance' agreement." Id.
While an arbitrator's view of the issues submitted to him receives great deference by the courts, an arbitrator is confined to the interpretation and application of the parties' agreement. Enterprise Wheel, 363 U.S. at 597. Here, the arbitrator determined that the issue before him was whether the City was justified in terminating Mr. Rummel based on the LCA and Mr. Rummel's alleged insubordination and misuse of his authority. Arbitrator's Order at 35-36. But allowing the arbitrator the authority to undertake a "just cause" analysis as to the appropriateness of Mr. Rummel's termination was not what the parties had agreed to in the terms of the LCA. The LCA only provided Mr. Rummel with the right to grieve the City's determination as to whether he had "complied with the terms and conditions" of the agreement.
The arbitrator found that Mr. Rummel had engaged in insubordination by failing to follow his supervisor's directive to not contact Ms. Unglesby, but then found that any insubordination was not "deliberate" and thus could not be considered a violation of any policy or rule. The arbitrator reached this result by considering the general civil service disciplinary rules which permit discipline when an officer deliberately or willfully violates an order. See General Rules, Rule XIII Disciplinary Actions (Arbitrator's Order
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[No. 26799-7-III - City of Yakima v. Yakima Police Patrolmans Ass'n, et al]
at 25). However, the LCA did not incorporate the disciplinary rules. Rather, the parties had already agreed that violation of the LCA could lead to termination. Whether or not such action was justified or harsh or unreasonable was irrelevant. Tootsie Roll, 832 F.2d at 84. It was what the parties had agreed to in 2002.
Therefore, whether or not Mr. Rummel's act was "deliberate" under Rule XIII was not a consideration that could be made by the arbitrator in his interpretation of the rules and policies that Mr. Rummel was subject to in the LCA. The arbitrator was only given the task of determining whether Mr. Rummel had violated the rules and policies identified in his LCA. The arbitrator had no authority to determine whether termination was inappropriate given the circumstances. Any conclusion by the arbitrator that Mr. Rummel's termination was unjust was beyond his authority and therefore erroneous.
With respect to the bar incident, the arbitrator found that Mr. Rummel had not misused his position when he "flashed" his badge and entered the bar to remove two friends. That factual determination is within the scope of the arbitrator's authority and is not reviewable by any court. The arbitrator also determined that Mr. Rummel intentionally called Ms. Unglesby at work and that he had been ordered not to do so by Captain Copeland. Policies and Procedures 7.03.00 requires that officers "obey any lawful orders of a superior officer" and that refusal to do so would be considered
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"insubordinate." Thus, when the arbitrator made the findings that Mr. Rummel had deliberately called Ms. Unglesby at work after being ordered not to do so, the violation of § 7.03.00 was established. Under the terms of the LCA, Mr. Rummel was in violation and could be terminated.
If the arbitrator had merely made a mistake about the applicable law, the courts would still have to uphold the arbitration order even though it was erroneous. Clark County, 150 Wn.2d at 245. Here, however, the arbitrator went beyond the agreement and tried to determine whether the termination was justified. In doing so, we believe the arbitrator exceeded his authority and, accordingly, we believe that the superior court properly granted the writ of certiorari in overturning the ruling. Similarly, we believe the argument that the termination was sought for ulterior motives likewise was beyond the scope of the arbitrator's authority. The LCA permitted arbitration of the issue of whether the agreement had been violated. Whether the LCA should have been enforced or not and the reasons for seeking enforcement were beyond the scope of the arbitrator's powers. Thus, the trial court was correct when it overturned the arbitration order.
The Union also contends that it is entitled to attorney fees for the proceedings in the trial court and on appeal to this Court if it prevails in upholding the arbitrator's award. See Br. of Appellant at 39. In light of our conclusion that the arbitrator was properly
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reversed, we need not further analyze the claim.
Affirmed.
___________________
Korsmo, J.
WE CONCUR:
___________________
Kulik, A.C.J.
___________________
http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=267997MAJ
If you believe that Mike Rummel was randomly picked up by WSP trooper Corey Kingman on Superbowl Sunday, I have some beautiful property overlooking the Caribbean in Las Vegas that I would like to sell you.
ReplyDeleteAs a long time friend of Mike's, I can say without question, he was a man of true love, loyalty and pride. The public annihilation of his character and the microscope held over his private life, proved in the end to be to much to bear.
ReplyDeleteMike was used as an example. To publicly parade him around as the exception, rather than the norm, was ethically reprehensible and in the end, life ending.
The day Sam Granato walked into the Yakima Police Department, Mikes days on earth were numbered. How ironic is it, that the man doing the accusing is now heavily under fire himself for infractions more detrimental to the reputation of the force, than anything Mike accused of and terminated for.
Mike-
I hope you are finding peace. I hope you know those who loved you and stood by you, still do today and that our respect for you remains, as it always will, undiminished.
We miss you, so much, every day.