Sunday, September 27, 2015

"Clear and convincing" circumstantial evidence sufficient to support termination

Grievant was employed by the City of Lakeville, MN as a police officer, a position he held for approximately seventeen years. In addition grievant had extensive experience as a writer and reporter and owned and operated his own business publishing weekly newspapers in local communities.

During two high profile police investigations the media reported details of the investigations that the City claimed could only be known by someone involved in the investigations or someone having knowledge as a member of the police department.

The City conducted an internal investigation in an effort to determine the source of the leak. While grievant denied involvement, the investigation concluded that he had been the media's source. The City terminated his employment for releasing information on an active investigation to the media without authorization and for being dishonest when asked whether he had released the information.

The grievance over the termination was submitted to Arbitrator Rolland Toenges for resolution.

After a hearing, Arbitrator Toenges found that while grievant continued to deny being the source of the leak he acknowledged telling the press that "something big was going on." Grievant also acknowledged being social and professional friends with a reporter who had received unauthorized information. The Arbitrator also observed that grievant, unlike others involved in the investigations,  declined to release his phone records to the Department.

Reviewing all of the evidence, and despite the Union's claim that the investigation had been inadequate, Arbitrator Toenges concluded that grievant had in fact released confidential information without authorization. He noted:

The evidence supporting the Employers case is mostly circumstantial. The media, as is their practice, will not voluntarily disclose the source of their information. There is no witness testimony that actually saw or heard the Grievant communicating the unauthorized information to the media. However, there is clear and convincing evidence supporting the charges against the Grievant. The record provides sufficient proof that it is substantially more likely than not that it was the Grievant who leaked the information to the media. 

Finding that grievant's actions caused a breach of confidence between other agencies and the Lakewood Police Department and so "irreparably damaged" the trust and confidence of his coworkers the Arbitrator concluded that he could no longer function as a member of the Department.

Accordingly he found just cause for the termination of grievant's employment.

Arbitrator Toenges' award can be found here.

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