Don Ryan, a 22-year veteran deputy with the Contra
Costa County Sheriff’s Department recently prevailed in a disciplinary
appeal of a five percent pay reduction for six months (equated to a six
day suspension). The appeal was submitted to binding arbitration and
heard by Arbitrator Charles Askin. Rocky Lucia, of Carroll, Burdick and
McDonough, was the PORAC/LDF assigned attorney representing Deputy Ryan
in the appeal.
A co-worker and female deputy who had worked
with Ryan at the West County Detention Facility in Richmond, CA had
initiated the disciplinary efforts by alleging that Ryan had engaged in
various activities directed at her and other females which demonstrated
a pattern of inappropriate conduct. The female deputy alleged that the
inappropriate conduct emanated from Ryan's massaging of female deputies'
necks and shoulders as well as inappropriate touching of their hair.
Additionally, the complaining female deputy alleged that objectionable
comments had been made to, and about her, in the presence of other
employees.
Of particular significance, were the allegations that
Deputy Ryan had been given preferential treatment by the department
relative to his position at the West County Detention Facility (WCDF),
and therefore had escaped official reprimand or discipline because of
his status at the facility.
An Internal Affairs investigation was commenced by
the department when the female deputy brought the charges to the
attention of a supervisor. The evidence demonstrated that during the
course of the I.A. investigation, the female deputy was motivated in
part by a mistaken belief that Deputy Ryan had initiated, and
perpetuated, false and misleading personal information about her. The
Internal Affairs investigators concluded that it was this mistaken
belief on the part of the female deputy that had prompted her to come
forward to make the various allegations against Deputy Ryan.
Internal Affairs issued its final report which
did not sustain the sexual harassment nor harassment in the work place
allegations. A supervisor in the department, based upon his independent
review of the final I.A. report, sustained the allegations and also
determined that Ryan had engaged in acts of dishonesty and
insubordination.
These allegations, as well as the charges initiated
by the female deputy were considered by Arbitrator Askin throughout the
four full days of the appeal hearing. During the appeal hearing, the
department called a number of female employees who had worked with both
Ryan and the complaining deputy.
It was noted during the hearing that although other
females were called as witnesses by the department, none of those female
witnesses had come forward and initiated their own independent or
related complaint against Deputy Ryan. The arbitrator noted that the
complaining female deputy had difficulty providing details of any
incident of misconduct she claimed had been directed towards her.
Despite representations to the I.A. investigator that
Ryan had been put on notice of the objectionable conduct by the
complaining deputy, on more than 50 occasions, the complaining deputy
was unable to recall a single incident. In defense of Deputy Ryan, a
number of witnesses were called, including several female deputies who
had worked closely with him while he was assigned to WCDF.
Deputy Ryan’s work history: Arbitrator
Askin determined that while Deputy Ryan had been assigned to the WCDF,
he had consistently received superior ratings in most of the categories
in his performance evaluations. Further, the arbitrator held that Ryan's
experience and knowledge of the West County Detention Facility was
"unsurpassed".
The complaining female deputy had alleged that Ryan
had been given preferential treatment by the department administration.
Contrary to the assertion of the complaining female deputy and those
testifying on her behalf, there was no evidence to support the
allegation that Ryan had been given differential or preferential
treatment in regard to disciplinary matters. Arbitrator Askin determined
that certain legitimate privileges and preferential treatment was
extended to Ryan due to "legitimate work-related issues".
Alleged inappropriate touching on the neck, hair and
shoulders: The evidence confirmed that occasionally Deputy Ryan
would rub the neck and shoulders of various female deputies, which was
usually invited and never done in a sexual manner. The single
complaining female deputy who initiated the charges alleged that the
conduct was objectionable and constituted "Sexual Harassment"
and should be cause for discipline.
The arbitrator determined that the complaining female
deputy was the only witness who considered the massaging of necks and
shoulders to be sexual in nature. Further, no other witness including
departmental witnesses stated that they ever considered the conduct to
be "offensive or sexual in nature".
The arbitrator also determined that none of the
female witnesses who testified in support of the complaining female
deputy "ever objected or asked grievant [Ryan] to stop his
behavior". The arbitrator concurred with the findings of the
Internal Affairs investigators that no sexual harassment had occurred
within the context of departmental policies.
Demeaning comments: The complaining female
deputy had alleged that Ryan had made several uncomplimentary comments
to, and about her. The female deputy alleged that these comments
constituted "verbal harassment". The arbitrator determined
that the female complaining deputy was extremely hostile towards Deputy
Ryan and that there were significant questions concerning the
"reliability" of her account on various matters relating to
the discipline.
Arbitrator Askin found that although some comments
may have been uncomplimentary in nature, they did not violate
departmental policies on "verbal harassment".
Dishonesty and insubordination: These
allegations arose once the supervisor received the completed Internal
Affairs report, and he disagreed with its findings. This supervisor had
reviewed witness statement summaries and determined that Deputy Ryan had
independently engaged in acts of dishonesty and insubordination based on
differences in those statement summaries. No such allegations were made
or sustained by the I.A. report.
The arbitrator, having reviewed all of the evidence
relating to these charges, determined that it is quite common for
witnesses to have varied recollections regarding a particular incident
and that it does not necessarily follow that those witnesses may be
engaging in dishonest conduct if they provide two different accounts of
the same incident. Arbitrator Askin concluded that Deputy Ryan had not
engaged in dishonest conduct.
In assessing Ryan's veracity, the arbitrator seemed
to be impressed that Ryan had made numerous admissions concerning some
of the allegations against him. The candid and forthright manner in
which Deputy Ryan testified at the hearing, further bolstered his
defense relative to the charges of insubordination.
The same supervisor initiating the allegations of
insubordination was also a percipient witness to the incidents
underlying the charges. The arbitrator determined that the weight of the
evidence supported Deputy Ryan, and at no time was he insubordinate or
untruthful.
In support of the defense of Deputy Ryan, the
arbitrator determined that there was not just cause for the decision to
reduce his pay in light of the fact that the offenses relied upon for
discipline were not sustained.
It should also be noted that the complaining female
deputy did not follow the clear mandates of the Departmental Sexual
Harassment Policy to report any such inappropriate conduct to a
supervisor, or in the alternative, create a diary or log system to
substantiate the incidents in support of the allegations.
