Police officer "wasted" second chance. Domestic violence and related publicity supports termination

Grievant began his employment as a police officer with the City of Coral Springs, FL in 2005. In 2010 he was arrested and convicted of two counts of battery on a detainee and his employment was terminated. An arbitrator subsequently ordered his reinstatement but found significant discipline to be warranted and awarded no back pay for the approximately two years he was off the job. He returned to employment in December 2013.

On April 22, 2015, while off duty, grievant was involved in a "heated argument" with his wife. During the course of the argument grievant punched a hole in the wall and used a crowbar to deflate the tires on his wife's car.  Grievant was arrested for domestic battery and a "no contact" order was entered against him. The altercation was covered by the local news station, and the story included reference to his prior conviction and the current charge of domestic violence.

On April 28, 2015 a neighbor called 911 to report that grievant had entered the marital home. The Sheriff's Office arrived shortly after grievant's wife also arrived. The wife falsely informed the Sheriff's officers that her husband was not on the premises. Nevertheless, a SWAT team was deployed  and remained on the scene after an initial aborted contact with grievant. There was conflicting testimony about the amount of further contact with grievant. Grievant claimed he had not been aware that the SWAT team was outside the house. The City maintained that local officers had talked and texted with grievant and informed him that SWAT was outside the house and had advised him to cooperate with the Sheriff's officers. Ultimately grievant's wife texted him and persuaded him to come out of the house. Grievant was arrested for violation of the no contact order and was formally served with a restraining order for the April 22 incident.

Once again, local news stations were on the scene throughout and took pictures of the deployed SWAT team.

In early May, grievant's wife dropped all criminal charges against him and he was never convicted of domestic violence/battery.

Following an investigation, the City terminated grievant's employment, and that action was ultimately submitted to Arbitrator Martin O. Holland for review.

Arbitrator Holland upheld the termination.  He noted initially the importance of public trust in its police officers:

Police Officers have a widespread respect from the general public. The public recognizes the significant hazards and risks police officers face every day. Police officers are the first line of defense from attacks or criminal conduct. A police career provides good wages, pension and benefits. Public trust is paramount as police officers provide service and protection to their citizens. 

Addressing the conflicting testimony, Arbitrator Holland found grievant's claim that the had not been aware that the SWAT team was outside his residence "absurd." He also found grievant's testimony "flippant" and "pugnacious." Reviewing grievant's disciplinary history, the Arbitrator observed that following his earlier termination an arbitrator had reinstated him but found his past discipline "significant" and a "major infraction." Nevertheless, that arbitrator had given grievant a "second chance" to save his career.

On the merits of the current discipline, Arbitrator Holland also addressed the fact that the conduct in issue had occurred while grievant was off duty. Notwithstanding that, the Arbitrator found discipline appropriate:

Generally, off-duty conduct is not a basis for discipline. ThyssenKrupp Budd Co., 121 LA 164 (Goldberg, 2005)   Arbitrators consistently hold off-duty conduct as outside an employer's realm. However, because of the special nature of police employment, municipalities may impose discipline. Kitsap County, 118 LA 1173 (Gaba, 2003)   A police officer is always a police officer whether on or off duty. They often carry firearms and are expected to be a steward of public safety even off-duty. The City, here, enacted reasonable Rules and Regulations in General Order-4 spelling out the on-duty and off-duty expectations of its police officers.   Those rules and regulations are well-founded and universally applied throughout the United States. There is no surprise when a city enacts standards of conduct for both on duty and off duty conduct. Professional conduct is expected of all police personnel, 365 days per year and 24 hours per day. 

He also found that the absence of a criminal conviction was not dispositive of the grievance, noting that "Just cause is not defined by a criminal statute."

Upholding the termination, Arbitrator Holland concluded that grievant had "wasted" his second chance, finding:

The City's reputation was harmed by the actions of the Grievant. Widespread media reports of aberrant behavior by a police officer is conduct unbecoming.
 The seriousness of [grievant's] infractions of General Order - 4 warrants discharge. Multiple police calls, multiple arrests, and multiple investigations outweigh any mitigating factors. 

Arbitrator Holland's award can be found here.

Arbitrator finds no contractual basis for claimed "constructive resignation"

Arbitrator Bruce McIntosh upheld a grievance filed by the Dayton Education Association on behalf of a teacher whose employment was terminated because of her alleged "constructive resignation."

Grievant was involved in  an "altercation" with her principal which included "some physical interaction" between her and the principal. Following this altercation, grievant was placed on paid administrative leave. In May of 2016 the Dayton Board of Education notified grievant that it had received information that while on leave she had accepted employment with a local charter school effective April 1 of that year. The Board deemed the acceptance of a position with the charter school while grievant was on administrative leave a "constructive resignation." It notified grievant that it was terminating the leave and would be seeking reimbursement for all payments it made to her after April 1.

The Association grieved this action, arguing that there was no contractual basis for a "constructive resignation," that there was no prohibition on grievant accepting alternate employment while she was on leave, and that the District's actions amounted to a termination without the procedural protections of the collective barging agreement and was without just cause. The Board maintained that in seeking and accepting a position with an incompatible work schedule grievant had "indisputably abandoned" her job with the Board of Education and that she therefore had constructively resigned her position. It asserted that it was therefore not required to show just cause or otherwise provide notice to the grievant.

Arbitrator McIntosh agreed with the Union. He noted:

       A review of the CBA reveals that there [sic] it does not deal with paid administrative leave nor with constructive resignation. Additionally, there was no evidence of any restrictions placed on Grievant while on Leave except that she could not report to work and her presence on school grounds would be considered trespass. To assert that her employment by the charter school prevented her from being available for work with her former employer with the direction by it not to venture on the school's property, appears to be, at best, an anomaly.
       The Arbitrator is unable to finds any contractual basis for Grievant's acceptance for a separate school contract to be "good and just cause" for termination pursuant to [the cba].

Arbitrator McIntosh ordered the School Board to pay grievant for whatever wages she did not receive for the balance of the school year, less any sums she received from the charter school. The Arbitrator's award can be found here.

Court: Employer waived interim earnings offset of back pay award by failing to raise the issue with the arbitrator

The Fraternal Order of Police, Lodge 10 grieved the termination of an employee of the State of Delaware. An arbitrator converted the termination to a suspension, ordered grievant's reinstatement, and directed the State to "[m]ake Grievant whole for all lost wages, benefits and seniority from the date of her termination, less the ninety (90) day period of time represented by the suspension."

Approximately nine months later the union filed a Petition to enforce the arbitrator's award. The State filed a Motion to Dismiss. The State did not seek to vacate or overturn the award. Rather, it sought a declaration from the Court that the term "make whole" used by the arbitrator required an offset of interim earnings. Alternatively, it requested that the issue be remanded to the arbitrator for clarification.  The Delaware Court of Chancery denied both of these requests. Noting the absence of any Delaware cases addressing the issue before it, which it described as "whether an arbitration award that is silent on the matter of the offset of interim wages should include an offset," the Court elected to follow the reasoning of the Seventh Circuit in International Union of Operating Engineers, Local No. 841 v. Murphy Co. 

The Court summarized the holding of the Seventh Circuit:

...if an arbitrator does not "mention offsets in his ruling it means that no offset was granted," especially when the defendant "knew or should have known that the issue of damages was before the arbitrator."... "To hold otherwise would only encourage employers to withhold evidence or comment on important issues, thereby undermining arbitration as a valuable tool for expeditiously and inexpensively resolving employer-employee disputes."[footnotes omitted]

The Court noted that the State had had ample opportunity to raise the offset issue but failed to address it other than to request that all of the Unions requested remedies be denied. The Court declined to adopt the State's argument that offsets of interim earnings is common in arbitration and the Court should assume that a "make whole" remedy includes an offset.

The Court also declined to order remand to the arbitrator, finding no ambiguity in the award. It concluded:

Defendant failed to ask the arbitrator to offset the back-pay award, and the arbitrator's silence as to offset in the Arbitration Award means that none was granted. Thus, there is no ambiguity that would allow me to remand the case back to the arbitrator for clarification.

The Court's opinion can be found here. A similar decision was reached by the Fifth Circuit in International Chemical Workers Union, Local 683C v. Columbian Chemicals Co.

Update: The Chancery Court denied the State's Motion for Reargument, concluding that it had failed to establish either that the award was contrary to public policy or failed to draw its essence from the cba. here.

Termination of police officer for off duty DWI upheld

Grievant was employed as a Sergeant on the Litchfield, MN police department. The department consisted of a Chief and eight licensed officers. In the early morning of October 27, 2016, grievant, while driving off duty, was stopped by a Sheriff's Deputy. The Deputy administered a preliminary blood test that registered grievant's blood alcohol content at .146. He questioned grievant concerning whether he had drinking. According to the Deputy, grievant initially denied having been drinking but later claimed to have had two, or maybe three, beers a couple of hours earlier. Grievant was arrested and charged with "driving while impaired" (DWI). A blood alcohol test approximately two hours later placed grievant's blood alcohol content at .186.

Following an investigation, grievant's employment was terminated for violation of several Department policies, including "criminal, dishonest, or disrespectful conduct, whether on or off duty that adversely affects the members relationship with the department,"failure to maintain a current drivers license {grievant's license had been administratively revoked following the incident], giving false or misleading statements [related to grievant's denial of having been drinking when questioned by the Deputy], and conduct unbecoming.

The termination was grieved and ultimately submitted to Arbitrator Carol Tidwell for decision.

Initially, Arbitrator Tidwell found that the policies in issue were reasonable ones. She noted:

The arbitrator finds that the policies, principles, and procedures cited above which the Employer asserts were violated by the Grievant are all eminently reasonable, including the provisions that relate to off duty conduct. Police officers are charged with enforcing the law and their violation of the law, especially when this occurs in a public setting as is the case with a DWI violation on a public road, is especially harmful to the reputation and ability of the police to maintain law and order among the general population. This is just as true when the behavior occurs off duty. It is accurate, as the City’s rules state, that an officer’s ability to do his or her job is dependent upon the respect and confidence the local population has in the police. It is highly reasonable for the City to consider the potential effect that an officer’s behavior at any time, on or off duty, has on the community’s opinion of the officer and by extension the local police department, and to promulgate rules that require exemplary behavior of its officers at all times. 

She also found that grievant had in fact violated the rules. While the criminal charges against grievant remained pending, she found that the Department had established that grievant "was indeed driving his vehicle on a public road having consumed a large quantity of alcoholic a state of impairment ...," and had given false information to the Deputy who stopped him. Similarly she found that grievant's loss of his driver's license and the subsequent conditional reinstatement subject to an ignition interlock device posed legitimate safety concerns and would engender a negative reaction in the community. Grievant's actions, concluded the Arbitrator, were egregious and the impact that conduct  in a small community particularly severe.

Arbitrator Tidwell also found that the City had established that grievant "lied repeatedly" to the arresting Deputy. While agreeing with the Union that the existence of a Brady/Giglio disclosure obligation does not automatically require an officer's termination, "it does not mean that a Brady/Giglio officer must be retained in the Department if the Department cannot accommodate that officer."

Turning to potential mitigating factors, the Arbitrator noted grievant's prior alcohol related issues and his apparent unwillingness to confront his problem with alcohol. The Arbitrator also remarked on the absence of any other officer of the Department testifying in his behalf. She did, however, reject Department's contention that grievant's plea of not guilty to the DWI charge, and his action in contesting the validity of the claimed consent to a blood test, evidenced a refusal on his part to "take responsibility" for his actions, concluding:

The arbitrator is convinced ... that employees such as the Grievant in this case should not be effectively forced to forego their Constitutional right to a trial and to contest evidence against themselves in a criminal proceeding in order to maintain or regain their employment.

Finally the Arbitrator considered and rejected potential remedies short of termination. Demotion, she concluded, would remove his leadership responsibilities but would not address the violation of the standards of conduct expected of him. Reinstatement on a last chance basis, or after completion of an alcohol abuse program would of necessity be based on grievance's recognition of the need for such treatment and a willingness to undertake it, something she concluded he was not ready to do. In light of this she noted:


It is well-settled in labor matters concerning discipline that the punishment must fit the crime. The arbitrator concludes that upholding the Grievant’s termination meets this standard; indeed she concludes that it is the only appropriate remedy in this case.

Arbitrator Tidwell's award can be found here.  A case also addressing whether an officer's denial of acts of misconduct provide a basis for a charge of dishonesty is discussed at Police officer's denial of misconduct insufficient to establish untruthfulness

Last Chance Agreements- Arbitrability of triggering event

Dontay Stokes was employed by Cenveo Corporation. In December of 2015, his employment was terminated for violation of the Company's Workplace Violence Policy. The termination was grieved and Cenveo and the Union (USW) entered into a Last Chance Agreement (LCA) in settlement of that grievance. The LCA provided:

I, Dontay Stokes, by affixing my seal and/or signature, acknowledge, in the presence of and witnessed by Cenveo management and USW Local 198G representation, that I have been issued disciplinary actions in accordance with progressive discipline guidelines as provided for in Cenveo Mt. Pleasant, PA Plant Rules. Additionally, I confirm that, I am subject to the last and final step of the progressive disciplinary process, which terminates my employment.

I am in complete agreement and understanding that this agreement permits me to continue as an active employee, on a non-precedent setting basis, at the Cenveo Mount Pleasant Facility, with the stipulation if I have a violation of Cenveo Workplace Violence Policy, in the next six (6) month period, that generates a warning, it will result in immediate termination. Further, I consent to waive all bargaining unit agreement rights to the grievance process regarding such termination and agree to hold harmless, Cenveo management, USW Local 198G and its officers or representatives for such actions with respect to such termination.
                                                                ***

Pursuant to the LCA, Stokes was reinstated. Thereafter his employment was again terminated when the Company claimed that he had threatened to physically harm a supervisor. Stokes denied making a threat and grieved the termination. Cenveo denied the grievance and also took the position that the grievance was not subject to arbitration because of the provisions of the LCA.

Cenveo filed a complaint with the District Court seeking declaratory relief and an injunction against arbitration. Cenveo and the Union filed cross motions for Summary Judgment. Judge Cathy Bissoon granted the Union's motion and denied that of the Company. Cenveo Corporation v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Intern'l Union. Judge Bissoon found that the factual dispute about whether grievant had made the threat was properly subject to arbitration. In doing so the Court relied in large part on the Third Circuit's decision in United Steelworkers of America v. Lukens Steel. In that case, the Court held that in a dispute where the LCA did not specify who would make the decision of whether the grievant had committed the offense alleged to have triggered the LCA, determination of that threshold question was properly submitted to arbitration.

Judge Bissoon found that Cenveo had not rebutted the normal presumption of arbitrability, noting:

Where a collective bargaining agreement contains an arbitration clause, there is a presumption of arbitrability. See United Steel Workers of America v. Century Aluminum of Kentucky, 157 Fed. Appx. 869 (6th Cir. 2005) (citing AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650 (1986)). The presumption of arbitrability may be overcome, however, if the collective bargaining agreement contains an "`an express provision excluding a particular grievance from arbitration,'" United Steelworkers of America v. Lukens Steel, 969 F.2d 1468, 1474 (3rd Cir. 1992) ... . In general, "[s]ettlement agreements (such as the Last Chance Agreements) between parties to a collective bargaining agreement containing a broad arbitration clause are arbitrable when the underlying disputes are arbitrable, except when the parties expressly exclude the settlement agreements from arbitration." ...

Judge Bissoon rejected the Company's efforts to distinguish Lukens, and its claim that the LCA in this case waived not just arbitration of the propriety of the disciplinary penalty but rather "all" rights to arbitration. The Court agreed with the Union's argument that, because the LCA did not expressly state who would make the initial determination of whether the grievant had committed the offense alleged, there was no waiver of the right to arbitrate that issue. The Court noted:

Cenveo has not presented "strong and forceful" evidence that Stokes waived his right to arbitrate the threshold issue of guilt. Indeed, Stokes's agreement "to waive all bargaining unit agreement rights to the grievance process regarding . . . termination" could be interpreted as a waiver only of his right to arbitrate his termination in the event that an arbitrator finds that he has violated the Policy. Plaintiff relies on Sterrett v. Giant Eagle, Inc., 2015 WL 791401 (W.D. Pa. Feb. 25, 2015), but that case is readily distinguishable. ... . In Sterrett, the last chance agreement states: "In the event that plaintiff is determined by the Company to have committed any dishonest act . . . the Company will have the right to discharge [Plaintiff]." ... . In contrast, the LCA at issue here does not explicitly state who will determine the threshold issue of guilt. Instead, the LCA provides that "if [Stokes has] a violation of Cenveo Workplace Violence Policy, in the next six (6) month period, that generates a warning, it will result in immediate termination." ... Such language leaves open the possibility that it will be an arbitrator, and not the Company, that will determine whether Stokes violated the Policy. Because the language of the LCA can be read to support either the Union's or Cenveo's position, the presumption of arbitrability applies.

Other issues arising from Last Chance Agreements are discussed in Can an arbitrator disregard a last chance agreement?, Reinstatement with Conditions - Last Chance Awards, and Last chance agreement doesn't bar arbitration when union is not a party

Quick Hits - Fundamental fairness, racial profiling and sex with a (former) student

The ongoing dispute about the discipline of Ezekiel Elliott

Dallas Cowboy Ezekiel Elliott was notified that he was suspended for six games. The suspension was related to allegations of domestic violence. The propriety of that discipline was submitted for review pursuant to the provisions of the cba between the NFL Players Association and the NFL. Even before a decision was issued, the NFLPA sought to vacate "the forthcoming Arbitration Award." The Union claimed that Elliot was being denied a "fundamentally fair" hearing and that important information had been withheld in the disciplinary process and from the "unilaterally appointed" arbitrator. On September 5, 2017 Harold Henderson issued his decision. (here) He described the appeal process under the CBA as "a unique exercise in labor arbitration." Henderson concluded that the Commissioner's decision was not arbitrary or capricious and that the process described in the cba had been "followed closely, step by step." Thereafter, the NFL filed a complaint in a different federal district seeking to confirm the award. The Sports Esquires links to the various documents and pleadings in the cases here. On September 8, 2017 District Court Judge Amos Mazzo granted (here) the NFLA's request for a preliminary injunction, enjoying the imposition of the discipline until a final decision could be reached on the petite to vacate. Judge Mazzant concluded;

The question of what happened between Elliott and Thompson in July 2016 is not before the Court. Nor is the Court making any credibility findings. As previously stated herein, the Court has a limited role in this case. The question before the Court is merely whether Elliott received a fundamentally fair hearing before the arbitrator. The answer is he did not. The Court finds, based upon the injunction standard, that Elliott was denied a fundamentally fair hearing by Henderson's refusal to allow Thompson and Goodell to testify at the arbitration hearing. Their absence effectively deprived Elliott of any chance to have a fundamentally fair hearing. The Court grants the request for preliminary injunction.

The NFL has requested a stay of Judge Mazzant's preliminary injunction and has indicted its intent to pursue the issue to the Fifth Circuit.

Update: Judge Mazzant has denied (here) the NFL's request for a stay. 

Arbitrator rejects discipline of Criminal Investigator for alleged acts of racial profiling

In September of 2015 several employees of the Oregon Department of Justice, including Grievant, were asked to trial a new software program the office was considering purchasing. Grievant was assigned to the Fusion Center, and his primary responsibility was to conduct threat assessments. The software being tested enabled a user to, among other things, do a word search on public Twitter accounts. As part of his trial, and unrelated to any pending investigation, grievant conducted a word search for "#blacklivesmatter" and "fuckthepolice." The software also had a geo-locate function which enabled grievant to view usage of the terms in the immediate area of his office. In doing so he discovered a twitter account with images of what appeared to be a police officer in the crosshairs of a rifle scope. Further search disclosed a substantial number of images "including political cartoons, personal photographs ... and other hashtags." Grievant was unaware of the person to whom the account belonged, but another employee identified that person as the Department's Civil Rights Director. Grievant notified his supervisor of what he had found and was ultimately instructed to prepare a memo about the discovered images. The memo was eventually shared with the Attorney General who asserted that grievant had engaged in racial profiling in his search terms. An outside attorney was hired to conduct an independent investigation, and grievant's employment was ultimately terminated. The asserted grounds for the termination were alleged violation Oregon Statutes prohibiting the collection and maintenance of "... information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal conduct," violation of the Department's Privacy Policy, and dishonesty during the investigation. Reviewing the termination, Arbitrator David M. Blair noted that while repeated references were made to alleged racial profiling, no such formal charge was leveled against grievant but the use of that label "most likely had a significant impact upon the Employer's decision to discipline the Grievant." Overturning the termination, and ordering grievant's reinstatement with back pay, Arbitrator Blair noted a number of "self inflicted wounds" by the Department:

(1) it ordered the Grievant to capture the images which are the subject of this grievance, (2) shared preliminary personnel information directly with [Civil Rights Director] Johnson, (3) shared preliminary personnel information with prospective campaign donors, and (4) shared preliminary personnel information with the media. It is of no surprise that the Employer set in motion a series of events that could have no other outcome than to deliver severe punishment for the declared perpetrator.

Arbitrator Blair also faulted the Department's introduction of a new tool with no guidance or training on its use. He found no evidence of any improper motive on the part of the grievant and nothing to support a finding of intentional deception. Regarding the charge of dishonesty, the Arbitrator noted:

As this matter involves a most damaging accusation of dishonesty against a law enforcement officer, the arbitrator specifically negates such charge and orders the removal of any and all such references from the Grievant's personnel file as it relates to this matter

Arbitrator Blair's award can be found here.

PA Supreme Court declines review of challenge to arbitrator's reinstatement of teacher

The Pennsylvania Supreme Court has declined to hear an appeal by the Cornwall-Lebanon School District of a decision upholding an arbitrator's reinstatement of a teacher who was dismissed for, among other claimed offense, having a sexual encounter with a student on the night of her graduation.

An arbitrator had found that while the teacher had significant interaction and communication with the student prior to graduation, the sexual relationship did not begin until she had graduated. He concluded, therefore, that the teacher did not have culpability for the relationship that took place after graduation and after the student was over eighteen. The Court of Common Pleas granted the School District's request to vacate the award, finding that even if the actual sexual encounter did not take place until after graduation the District had established that the teacher's conduct posed an unacceptable risk of undermining the School's legitimate policies, and that the award reinstating the teacher was contrary to public policy.

The Commonwealth Court reversed (here). It found that the lower court had improperly ignored the arbitrator's findings of fact and intruded into the arbitrator's authority to weigh the appropriate penalty. The Supreme Court has now denied the District's Petition for allowance to Appeal.

Arbitration panel upholds denial of recall because of 13 year old conviction

A Public Law Board including Neutral Joan Parker has rejected a claim that CSX Transportation improperly denied recall in 2014 to a furloughed employee because of his arrest and plea of guilty to a charge of involuntary manslaughter approximately 13 years earlier.

Claimant was furloughed on October 16, 2001. On October 10, 2001, while off duty, he had pointed a gun at another employee and the gun discharged, killing the other individual. Grievant was arrested and subsequently pled guilty. He was released on time served (June 1. 2002 through August 6, 2002) and was required to complete six years probation.

Claimant received a letter dated September 18, 2014, informing his that he was being recalled, subject to a medical exam and a background screening. After completion of the background screening he was charged with violating CSX's rules concerning "Concealment of facts under investigation" and "Criminal conduct that may damage CSX's reputation or that endangers CSX property , employees, customers, or the public." The Union (IBEW) challenged that decision arguing that CSX had waited thirteen years to charge the claimant despite being aware of the incident in 2001, and claiming  that the employer's decision was an abuse of discretion.

The Board found that claimant was properly found to be guilty of CSX's charges, and that dismissal was the appropriate penalty. It found no evidence that CSX had been aware of the incident in 2001, but that in any event "even had the Carrier been aware of the events of 2001, it would have had no cause to bring charges against Claimant in relation to those events unless and until he sought to be returned to service -- something he might not have done after being furloughed, so that the matter would never have arisen." The Board also found that Claimant had failed to timely disclose his earlier arrest and conviction. It observed:

Claimant acknowledged that he understood the recall letter that  he had received, and thus knew that a background screening would be performed prior to his return to service. Moreover, he called Manager Tim Hill after learning that he had passed the medical examination, and was told by Hill that he had to pass a background screening.  An employee with a felony conviction - especially one involving a firearm and the death of another person - must as a matter of common sense, suspect that he will not pass such a background screening. As Claimant acknowledged  he did not ask Hill any questions. That Claimant did not discuss his criminal conviction with Hill is both telling and, the Board finds, in itself a violation of Rule 104.4's prohibition of concealing facts under investigation. 

The Board's decision can be found here.