Res. No. 080-03-11629RESOLUTION NO.80-03-11629
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITYOF SOUTH MIAMI,FLORIDA RELATING TO
CLAIMS;REINSTATING DEBORAH BENFIELD TO FULL DUTY
AS A POLICE OFFICER PURSUANT TO AN ARBITRATION
AWARD;DIRECTING PERFORMANCE OF CERTAIN
REQUIREMENTS UNDER THE ARBITRATION AWARD
INCLUDING AUTHORIZING PAYMENT OF BACK PAY AND
WAGES FOR THE REMAINDER OF THE CURRENT FISCAL
YEAR OF $35,845 FROM THE CITY CASH RESERVE,
AUTHORIZING RETROACTIVE SENIORITY WAGE INCREASES
IF APPLICABLE,AND ALL OTHER BENEFITS;PROVIDING
AN EFFECTIVE DATE.
WHEREAS,the arbitrator inthe matter styled Deborah
Benfield v.City of South Miami,case number 32-390-00667-
02,orderedtheemployeebereinstatedwithback pay;and
WHEREAS,pursuant tothe collective bargaining
agreement between the city and the Dade County Police
Benevolent Association the arbitration award is binding on
the city.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI,FLORIDA THAT;
Section 1.The city manager is directed to take
actions required toreinstate Ms.Benfield;with back pay
and benefits,as ordered in the annexed award.
Section 2.The city manager is authorized to
pay Deborah Benfield thesumof$16,453.18,as back pay
plusfica tax,fromtheCitycashreserve appropriated to
several appropriate accounts within the Police Department
budget.
Section 3.The city manager is authorized to
reinstate Deborah Benfield as Police Officer,pay her the
wages and benefits sheis entitled for this fiscal year,
calculated to be $19,391,appropriated from the city cash
reserve to several appropriate accounts within the police
department's budget.
Pg.2 of Res.No.80-03-11629
Section 4.This resolution shall take effect
immediately upon approval.
PASSED AND ADOPTED this 20th day of May,2003.
ATTEST:APPROVED:
^t£#'MU.
CITY CLERK
READ AND APPROVED AS TO FORM:
/^/fv^/Ar/*—
CITY ATTORNEY
"!%£*.fejjj ^*<*s*-6y*ff
COMMISSION VOTE:5-0
Mayor Feliu:Yea
Vice Mayor Russell:Yea
Commissioner Wiscombe:Yea
Commissioner Bethel:Yea
Commissioner McCrea:Yea
CITY OF SOUTH MIAMI
INTER-OFFICE MEMORANDUM
********************************************************************
To:Mayor and City Commission
From:Sanford Youkilis S
Acting City Manager/7^
Date:May 6,2003
2AGENDAITEM#
Re:Deborah Benfield's
Arbitration Settlement
********************************************************************
REQUEST
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI,FLORIDA RELATING TO CLAIMS;
REINSTATING DEBORAH BENFIELD TO FULL DUTY AS A POLICE
OFFICER PURSUANT TO AN ARBITRATION AWARD;DIRECTING
PERFORMANCE OF CERTAIN REQUIREMENTS UNDER THE
ARBITRATION AWARD INCLUDING AUTHORIZING PAYMENT OF BACK
PAY AND WAGES FOR THE REMAINDER OF THE CURRENT FISCAL
YEAR OF $35,845 FROM THE CITY CASH RESERVE,AUTHORIZING
RETROACTIVE SENIORITY WAGE INCREASES IF APPLICABLE,AND
ALL OTHER BENEFITS;PROVIDING AN EFFECTIVE DATE.
BACKGROUND AND ANALYSIS
The attached resolution is requesting your authorization forthe
City Manager to reinstate Ms.Deborah Benfield as Police Officer
pursuant to arbitration award.Ms.Benfield was terminated in
September 2002.As provided in the PBA contract,Ms.Benfield
requested arbitration hearing onher termination.TheCityand
Ms.Benfieldagreedtoabidebythefindingsandrecommendations
of the arbitrator.At the conclusion of the hearing,the
arbitrator recommended that Ms.Benfield termination be commuted
tosixtydaysuspensionwithoutpayandreinstatementwithback
pay,including benefits,fromtheendofthesixtyday
suspension.TheCityAdministrationhascalculatedthetotal
amount needed to comply with the settlement inthisfiscal year
to be $35,845.This is an un-budgeted amount needed to be
appropriatedfromtheCitycashreservetothe appropriate
accounts within the Police Department budget.
It should be noted that theuseof cash reserve to pay for this
settlement will reduce the reserve balance to $1,125,988,if the
two resolutions for the forensic audit service,and the lobbyist
fees in tonight's agenda are approved.
RECOMMENDATION
Approval is recommended,
SAY/HKO
Attachments
Settlement documents
Draft Resolution
CITY OF SOUTH MIAMI
NOTICE OF PUBLIC HEARING
NOTICEISHEREBY given thatthe City Commission of theCity of South Miami,Florida will
conduct a Public Hearing during its regular City Commission meeting on Tuesday,May 20,
2003,beginning at7:30p.m.,intheCity Commission Chambers,6130Sunset Drive.,to consider:
A RESOLUTION OF THE MAYOR &CITY COMMISSION OF THE CITY
OFSOUTHMIAMI,FLORIDA,RELATINGTOAREQUEST FOR A
VARIANCE FROMSECTION 20-3.5(E)OF THELANDDEVELOPMENT
CODE TO ALLOW THE FRONTAGE OFA BUILDING SITE TO BE 66.67
FEET,WHEREA MINIMUM OF 75FEETISREQUIRED,ANDTO ALLOW
THENETAREA OF A BUILDING SITETOBE 9,316 SQUARE FEET,
WHERE 10,000 SQUARE FEETISREQUIRED,ON PROPERTY WITHIN AN
"RS-3"SINGLE-FAMILYRESIDENTIALUSEDISTRICT,LOCATEDAT
7230-7240 SW 63rd COURT,SOUTH MIAMI,FLORIDA,AND LEGALLY
DESCRIBED AS LOTS 7,8,9,AND10,BLOCK2,"SUNSET VILLAS"PLAT
BOOK15,PAGE42;(THE GRANTING OFTHE VARIANCE WOULD
ALLOW FOR THE CONSTRUCTION OF THREE SINGLE-FAMILY
RESIDENTIAL DWELLINGS);ANDPROVIDINGFOR AN EFFECTIVE
DATE
Inquiries concerning this item should be directed to the Planning Division at:663-6327.
ALL interested parties areinvitedtoattend and will be heard.
Ronetta Taylor,CMC
City Clerk
City of SouthMiami
Pursuant to Florida Statutes 286.0105,the City hereby advises the public that ifa person decides to appeal any decision
made by this Board,Agency or Commission with respect to any matter considered at its meeting or hearing,he or she
will need a record of the proceedings,and that for such purpose,affected person may need to ensure that a verbatim
record of the proceedings is made which record includes the testimony and evidence upon which the appeal is to be
based.
Apr-14-03 09:35am From-NAGIN GALLOP FIGUEREDO 305-854-5351 T-4T1 P.002/025 F-147
AMERICAN ARBITRATION ASSOCIATION
Arbitration Award
In the Matter ofArbitration
between
CITY OF SOUTH MAMI,FLORIDA,
and
DADE COUNTY POLICE BENEVOLENT
ASSOCIATION,INC.
Appearances
For the Giievant:
Case No.32 390 00667 02
Arbitrator:
HAROLDD.SMITH,ESQ,
Grievant:
DEBORAH BENFIELD
ALBERTO MILIAN,ESQ.
DadeCounty PoKce BenevolentAssociation,Inc.
For the Employer:
MICHAEL D.SPTVACK,ESQ.
Nagfn,Gallop,FIgtieredo
Background
The undeonsfgnsd wasselectedbythe parties throughthe American ArbitrationAssociation
toserveas impartial arbitrator tohearthe above-referenced matter.
On September 20,2002 Grievant,Deborah Benfield's employment "with tbe City of South
Miamiwasterminated by letterfrom Charles D.Scurr,CityManager.
BenfieldwashiredbytheCityin 1988.At thetime ofherterminationsheheldtheposition
ofPolice Officer,onroad patroL
Benfield was charged with violating the following rules and regulations applicable to
Police Department employees:
Apr-14-03 09:35am From-NAGIN GALLOP FIGUEREDO "'305-654-5351 T-471 P.003/025 F-147
CHAPTER 3
3.04 Responsibility to Take Action:
All swornmembersareresponsibleforthe enforcement of the
Criminal Statutes of theState of Florida,the Ordinances of Dade
County andtheCity of South Miami While on regular duty,a
sworn member wiU,at all times,be ready to promptly respond to any
incident in which a criminal law has been violated,ortoany call for
.service.If a criminal law has been violated and there is probably
cause tomakean arrest,then the member will takethe appropriate
action.
While off regular duty,if a sworn member has probable cause to
believethatacriminallaw has been violated,thatmember will take
appropriate action to preserve life,protect property oractinan
emergency situationuntil on-duty officersarrive.
COOPERATION
3.08 InEra-Departmental:
Cooperation between Department members is important for
harmonious operation.Members should be even-tempered and act
with feTTTress toward eachother.Members of thevariousdivisions
andunitsshouldworktogether providing necessary information and
cooperation.
DUTY REQUIREMENT
3.13 Duty Responsibilities:
Withtheexception of specificduty assignments,membersshall
performallother duties asmaybe required of themby competent
authority.Incarrying out Department functions,members shall
direct and coordinate their efforts to establish and maintain the
highestprofessional standards ofefficiency.
3.24 Responding to Calls;
Members shall at all times respond promptly and safely to all radio
calls directed to them,or to calls received from citizens for aid.
They shall,assoonas practical uponcompletion of the call or
assignment,makethemselves available forassignments.
3,53 Proper Conduct for an Officer,
Members of the Department shall conductthemselvesinanorderly
and lawful manner at all times,bothon and off duty,in order to
Apr-14-03 09:35ara From-NAGIN GALLOP FIGUEREDO 305-854-5351 T-471 P.004/025 F-147
properly reflecta positive image andthehigh professional standards
ofthe Department
3.54 Prejudicial remarks:
Members and employees shall refrain from making wise cracks,
sharp retorts or voicing prejudices concerning race,sex,religion or
politics.
Issue
WAS THERE JUST CATJSJE FOR THE CITY
OF SOUTH MIAMI TO TERMINATE THE
EMPLOYMENT OF DEBORAH BENElELD?
IF NOT,WHAT SHOULD BE THE REMEDY?
ApplicableContractProvisions
ARTICLE 21 MANAGEMENT RIGHTS
1.The Association and its members recognize thattheCity has the
exclusive right to manage and direct all of its operations.
Accordinghy,theCity specifically,butnotbyway of lirnitationi
reserves the exclusiverightto:
G Fire,demote,suspend or otherwise discipline employees for
proper cause;
Summary nfTestimony and Position of the Parries
The detennination bythe City to terminate Benfield's employment is based onher decision
notto respond toa radio request by OfiScer Alex Hechavarria,for a routine 15 bade up assistance
while he was in the process of making a traffic stop of a wanted male.The City played a tape of
the radio transmission and a telephone discussion between Benfield and Communications Officer,
Diane Braun,regardmg the call for back up,Hechavarria described the male asa "big boy".A
copy of the tape was provided to the court reporter.Portions of the tape played at the hearing are
set forth in the hearing transcript.Names of individuals who are speaking have been inserted by
the arbitrator,according to testimony atthe hearing:
VOICE:Telephone recording from Thursday,April 25,2002,
approximate start time 659hours.SMPD case 023689.
Apr-U-03 09:36am From-NAGIN GALLOP FIGUEREDO 305-854-5351 T-471 P.005/025 F-147
Radio transmission:
VOICE:220L
VOICE:5833210913.97th Avenue on 40th Street,traffic.
VOICE:13658,DadeCounty.
VOICE:2703 (inaudible.)
VOICE:2703.
VOICE:(Inaudible.)
VOICE:Miami 203.
(Hechavarria)VOICE:Ihavea wanted subject here atthepost office.Ineeda
.routine 15(Inaudible.)
VOICE:You're at the South Miami Post Office?
Any unit code 15 at the South Miami Post Office,
VOICE:01 at the station
VOICE:(Inaudible)02QPXatthePostOffice.
VOICE:004 (Inaudible)copy.
VOICE:Is that Routine?
(Hechavarria)VOICE:No,he'sabigboy.I'm going tostophim right now.
Miami201inroutefromthe station.Any otherunitinVOICE:
the area?
VOICE
VOICE
VOICE;
South Miami (Inaudible)
(Inaudible)atthePostOffice7 o'clock QXJ.
(Inaudible.)
TapedtelephoneconversationbetweenBenfieldand ComtnimTftations Officer
nfannft ftrftimr
(Benfield)VOICE:Hey,isn't Hechavarria's statement redundant?Isn't
everybody biggerthan he is?
Apr-14-03 09:36am Fron-NAGIN GALLOP FIGUEREDO 305-854-5351 T-471P.006/025 F-147
(Braun)VOICE:You know what?You're absolutely right
(Braun)VOICE:I know,I hear him saying oh,yes.I don't know who he's
got but,youknow,maybe he isa real big guy.Idon'tknow.
(Benfield)VOICE;Yeah,welL I didn't get on the radio because,you know,
he got me yesterday so I said screw it,then I'm not going to take 15s with
you.
(Braun)
(Benfield)
(Braun)
(Benfield)
(Braun)
(Benfield)
(Braun)
(Benfield)
(Braun)
VOICE:Yeah.
VOICE:Okay.
VOICE:Alrighty.
VOICE:IJsb]having breakfest.
VOICE:You are?
VOICE:Yeah.
VOICE:Allr^ht
VOICE:All right
VOICE:AHright Talk toyou later
Tr.448-450
As indicated in the tape,Benfield heard the radio request for assistance.However,she
didn't get on the radio to respond.Instead she calledBraun bytelephone and made remarksabout
Hechavarria's size,and that she wasn't resrjonding to Hecnavama's request for a routine 15 back
up because ofsomething he did toherthe day before.
It is noted m.the J^isc^hnary Action Report,and in testimony,that four of the five
available officers on duty responded to the area to assist Hechavarria.The Dairy Activity Sheets
show that one ofiicer arrived at the scene m two rninutes,one in three infantes,and two others
several minutes later.The City is relatively small in geographical area so any police ofiicer on
duty could gettothe scene quickly.
Apr-14-03 09:36am Fron-NAGIN GALLOP FIGUEREDO 305-654-5351 T-471 P.007/025 F-147
The City alleges that Benfield was taking an un-requested meal break,out of her assigned
zone 2.Otherwise,she would have been one ofthe ctosest officers to Hechavarria's location.The
City maintains that Benfield doesn't have theoptionnotto respond to another officer's call for
backup.
The Union argued that Benfield was not required to respond based on City policy and that
the City foiled to apply its rules and penalties evenhandedry.In support of the disparate treatment
argument,theUnioncited prior incidents including two incidents that occurred in 1997,where
Officer Rodrick Everett Med to respond tobackup requests.One of those mcidents is rfmiV to
the circumstances in Benfield's case.A female officer requested a Routine 15 back up because
therewere three males m a vehicle shewas preparing tostop.Ina June 17,1997 memorandum to
ChiefCokes Watson,Sergeant M,D'Angelo stated,in part:
Asto20May 1997 (1545 hrs.):I recall hearing Ofc.Merirck request routine back
uptoa traffic stopat80 St,&S.Dixie hy(Iwasinthe station atthe time).The
Kendall dispatcher asked for aunitto respond afewtimeswhen Ofc.Diaz
acknowledged andsubsequentlyresponded.Ibelieveat the tim?Ofc.Everettwas
inthenorthend ofthecity.He expressed to me thathe figured acloserunitwould
respond,but ifonedidnothe certainly wouldhave responded.I explained theneed
for an immediate response for back up requests and that geography isnota factor.
Inthiscase,I recommend a supervisory coaching.
A Supervisory Coaching Reportwasissuedwhich included the following:
2.Officer did not acknowledge a request for routinebackupto another
officerby MJDJJD.dispatcher.Ofiicer wasin serivcefsic]atthetime ofrequest.
The City argued thatthe above incident isnot factually similar because Everett didn'tsay
he wasn't respondingbecausehedidn't like theofficerrequesting assistance.ChiefWatsonwas
askedbythe City Attorney to distinguish the Everett incidentfromtheBenfield incident.Watson
testified as follows:
Q.IntheMay4,1997 incident,whatwerethefacts?Whatwerethe
facts?
Apr-14-03 09:36an From-NACIN GALLOP FIGUEREDO 305-854-5351 T-471 P.008/025 F-147
A.In that particular case,Officer Everett,based on that document,is
sayingthathewrotedownthewrong address ofsome sort
Q.Do you know what the call was?What was Everett supposedly
goingtodothathe didn't do?
A.I believe hewasa back up officer,ifIamnot mistaken.
Q.Did Officer Everett,astotheMay4th calL,indicate thathedidn't
respond because hejustdidn'tliketheother police officer?
A.No.TTiat's not in the memorandum
Q.I^'sgototlaeMay20--Iet*sgototheMay20,1997 incident.
Doyou recall fiom five years ago what the facts were of that
incident,what the call was?
A?Based on reading that briefly,yes,
Q.What werethey?
A.Apparently,I believe that Officer Everett was assigned toa back up
call and being at an extended part of the city he thought somebody else would be
closer,sohedid not respond.
Q.Did he say,as to the May 20th call,he didn't respond because he
didn't Eke to officerwhoputoutthe call?
A.No,not accordingtothatdocument.
Q.OntheMay 11th call,doyou recall whatthe facts were ofthe May
nthcall?
A.No.I would have to renVeshn^memory.
Okay.
Q.WhatwastheMay11th call,whatwasthat?
A.Apparently,I believe in looking at that documentation,Officer
Everett was assigned to a back up call for another officer and apparency he stated in.
that memorandum that he was waved down bya citizen for directions and
ar#arently he did not go to the call,I believe,and I think the supervisor told him
that it*s okay to take a delayed response but he needs to get approval when he does
so,orpriortodoingso.
Apr-14-03 09:37am Fron-NAGIN GALLOP FIGUEREDO 305-554.5351 7.47;p,m/^W47
Q.On the May 11th call,did Officer Everett say I didn't go to the
responsebecauseI don't Eke the officer?
A.No.
Q.Now,counsel showed you a document he moved into evidence and I
am not sure what the number is,it's a memo fiom Lieutenant Bradshaw,Shirley
Bradshaw.Is ShMeyBradshaw,isthataman?
A.Trial's a lady.A female.
Q.So Lieutenant Bradshaw is a female.She reviewed tnis investfeation
ofthis male police officer;correct?
A»Correct.
Q.So you had a female police officer review an mvestigation ofa male
police officer?^^
A.*Eight,
Q.And that Lieutenant Shirley Bradshaw gave you a recornmendariori.
did she not?„^
A.Yes.
Q.In foct,in the memo that counsel moved in [into evidence]for
Officer Benfield,Lieutenant Shirley Bradshaw says I agree with Sergeant
D'Angelo's reconmiendation regarding the two incidents;is that correct?
A-Correct.
Q.Ami Sergeant D'Angelo's recommendation is contained m the
interoffice mernorandum from Sergeant D'Angelo to yourself dated June 17th,the
one wejust went over?
A.Correct
Q.That recommendation was mat the officer should receive a coaching
report;correct?^
A.Correct.
Q.Now,how is the three incidents,these three incidents involving
Officer Everett,how are they different than what happened with Officer Benfield?
Apr-14-03 09:37am From-NAGIN GALLOP FIGUEREDO 305-654-5351 T-471 P.010/025 F-147
A.Well,inOfficer Everett's case,in those two incidents,there was a
consciousdecisionnottoassistanofficer.Therewasno calling into a dispatcher or.
any other person making a statement asto personal dislike for that particular officer
andnotrespondingtoacallliketheywere arppose[d]tohavedone.
And the other cases,ofcourse,therewas none ofthatand the officer
gave the supervisor of that partictdar shift the reasoning whyhedidnot respond in
whatever fashion he didn't respond.
Tr.423-426
Benfieldtestifiedthatshehadbackedup Hechavarria onotheroccasions.Shedidn'ttake
the call forbackup on the dayinquestionbecausesheheardontheradiothat there wereother
officersgoingwhowere closer.She said ifnootherbackupunitshad responded shewouldhave
attempted topickup the call.Itwasher understanding that two policeunitsresponded.She
continued to monitor the radio.On cross-examination Benfield testified:
*Q.You heard the audiotape of the comrnunications officer and
yourself?
A.Yes,
Q.Isthattape,as far asyourconversationwith Cornnmnications
Officer Braun,foir and accurate?Hasit been altered in any way?
A.No.
•Tr.445
Benfieldwas not askedto explain,ondirector cross-examination,thebasisforthe
commentduringthetelephone call toBrown that,"Yeah,well Ididn'tgetontheradio because
youknow,hegotmeyesterdaysoI said screw it Then I'm not goingtotake15s with trim."
Benfield did testify that she hadnodislikefor Hechavarrfeu
Hechavarria didn't testify duringthearbitrationhearing.Therewasnointernal afiairs
investigation conducted by theCitysothe arbitrator iswithoutknowledgeasto what,if any,
animosity existed between Benfield and Hechavarria.There wereno statements takenbytheCity ,
from anyone.
Apr-14-03 08:37am From-NAGIN GALLOP FIGUEREDO 305-854-5351 T-471 P.011/025 F-147
The decision to terminate Benfield's employment was based entirely on her statement to
Braun that she was not going to take 15s with Hechavarria due to something he did the day before.
The Union claims there was no violation of the rales for not responding toa routine 15
back up call and that Benfield shouldn't have been terminated,despite her remarks about
Hechavarria,
ComTnTmTcations Officer Braun testified thather duties are tomonitorthe radio the whole
time she is on shift;answer the telephone;send officers on calls and talk to the public.On direct
examination she was asked to explain how it works when an officer puts outa call for a 15.She
responded:
AI A 15 is a,is asking for --it's routine.It's not an emergency,for an
officer to respond to his location.More than one officer may show up.Sometimes
officers getonthe radio and saythey are responding and other times an officer will
just go on to that location.
Q.If an officer does not get onthe phone,geton the call and sayhe's
not responding,ishe supposefdj,she suppose[d]togotothe scene;ifyou know?If
you don't know you don't know.
A.Aroutine 15?Not necessarily.If someone,if an officer gets on the
radio and says that they are rcspoiiding,then that person is responding to the 15.
Q.What about the other officers who are working that day?Do they
just decide nottogoon their ownor are they supposefd]to respond?
A-I guess they should respond butnot everybody needs to respond.It
depends onwhatthe call is.It depends onwhat's going onatthetime.
Tr.19-20
Oncross-examination Braun testified as follows,regarding herresponsibilities.
Q.Right.Andas far asyourjobin monitoring,youmonitoritfora
variety ofreasons;wouldthatbe fair to say?
A.Yeah.
Q.I mean you want to make sure that calls are being responded to?
10
Apr-14-03 09:37am From-NAGIN GALLOP FIGUEREDO 305-654-5351 T-471 P.012/025 F-147
A.I want to make sure calls are being responded to.I would say,ifI
had to say the number one reason why I am listening to the radio is safety.
Q.And of course that's what was going to be my next question,you're
also there to insure that officers are backed up when needed?
A-Yeah.
Tr.36
Braun testified that nvo officers were recorded on the tape as responding to the call for a 15:
Now,you made an important point here.At least to your knowledge
two other officers arrived onthe scene to provide back up.
A.I believe they arrived on the scene.They said they were going to the
scene.
Q.So they acknowiedged getting the call and going there on that date-
right?
A-Correct
Q.Howmany other officers were on that particular shift on that
particularday?
A.Therewas,IbeKevetherewasatotalofnveofficer$.
Q.So two ofthe five,to your knowledge,at least,arrived;correct?
A.I would have tosayonthe radio they said they were going,tothe
scene so I would believe that they would have gone to the scene like they said they
were.
Tr.39
Q.This wasnotan emergency?
A.He came across the radio as this was not being an emergency.
Tr.41
11
Apr-14-03 09:38am Fron-NAGIN GALLOP FIGUEREDO 305-054-5351 T-471P.013/025 F-147
The arbitrator asked:
THE ARBITRATOR:There isa2-15,3 -15 andthenaroutine15?
THE WITNESS;Correct
THE ARBITRATOR:What'sthedifferencebetweena2-15anda
routine 15?
THE WITNESS:A2-15 is you're going to step it up.
THE ARBITRATOR:That's a lih^h^herprbrity?
THE WITNESS:Exactly.Exactly.....
Tr.42-43
Regarding her responsibility forofficer safety,Braun testified:
Q.One ofyour jobs there isto insure officer safety?
A.Correct
Q.On this particular day,ifthere had been any issue with officer safety,
you certainly would have put out a call that you were concerned through the
airwaves;correct?
A-Correct
.Q.Inother words,you had the ability to contact specific t»ift<and ask
them torespondto ajjartkular site?
A.Correct.
Q.And if in any way you thought officer Hechavarria was in any land
of danger,imminent or otherwise,you certainly have the c»rnmunication authority
tomakethat call and call unitsto respond?
A-Yes,butin all actuality,the sergeant,he'sthe one that's naming all
ofhis officers.He's running the shift
Q.Well,atnotimethatwe heard the commiimcations that were
presented here today at this hearing did we hear the sergeant intercedmg whatsoever
inany ofthese communications,dowe?
A.No.
12
Apr-14-03 09:38am Fron-NAGIN GALLOP FIGUEREDO 305-854-5351 T-471 P.014/025 F-147
Q.So the sergeant,beingin overall command of the shift,hewould
have the authority togetonthe radio and prioritize or order people topickupa
particular call;correct
A-Correct
Q.And inthis call,all weknowisthat immediately afterOfficer
Hedbavarria,at least from the pordon theCity selected to play,isthattwoother
officersresponded;correct?
A.Correct
Q.Andwecan assume that that isthe same information that anybody
elselisteningto the radio would haveheard?
A*Correct
Q.Is there atanytimeOfficer Hechavarria statesthatthisindividual
thatheis stopping maybe armed or dangerous oristakingany hostile actions
towards bun?
A*No.
Q„If onthat particular dayyouatanytimewouldhave thought mat
officer Hechavarria needed additional backing beyondthetwoofficersatleastthat
weknowthatwere there onthe scene,you certainly wouldhavegoneonthe radio
andyou would put thatinformationon;correct?
A.Correct.
Tr.44-46
Braun acknowledged that geographically the City is small in area.Regarding the Ponce coverage
she testified:
Q.And onthewalloverhereto my rightwehavea chart for
demonstrative purposes,itsaysCityServices Directory,andit includes thezones
that we have been talkingabout,doesn't it?
A.Correct
Q.And the officers routmery go from zoneto zone;isn't that true?
A.Correct
Q.And thereason is because it's a sinafl dry;right?
13
Apr-14-03 09:38an Fron-NAGIN GALLOP FIGUEREDO 305-854-5351 T-471 P.015/025 F-147
A.Yes,it's asmall city.I don't know--
Q.You said wehave four to five officers per shift on duty?
A.CorrectThey are assigned zones.Theyare supposefd]to stayin
then*zone.They gotootherzonesfornumerousreasonsand primarily,sometimes
weneedtwoofficersonone call,theyneedaback up officer,theygototherefrom
another zone.
Q.Isthatthe custom basically getone back upofficer on a call?
A»Itdependswhatcallitis.
Q.Ifit's aroutine15?
A.Correct
Tr.53-54 •
Captain BruceRoss,Administrative Division Commander,testifiedfortheCity.Among
his responsibilities istooperatethe Internal AffairsSection ofthedepartmentHetestifiedthatthe
worksheets for April 25,2002 showthat four officersrespondedto Hechavarria's call.
Assistant Chief of Police,Michael Mills,testified forthe City.Heisin charge of all
uniformpatrolofficersand supervisors.On direct examination,he testified:
Q.Nbw7 isitanindividual police officer's discretion,does she have the
discretiontosimplydecideshe'snotrespondingtothatcallby OfiScer Hechavarria
giventhatitwasa15andnota2 -15 ora3 -15?Doesshehavethediscretionto
say I'm not going?
A.Based on --if shefeltthatshe was theclosest unit,^ie should
respond.If she knew some reason thattherewereadequateunitscloserandthere
wasanadequateamount of unitscloser,she could have the discretion not to
respond.
I mean,everybody should takeituponthemselvestorespond.
Q.If she thought thatthere were otherunitsrespondingshe didn't have
to respond?
A.Inorderforhertonot respond,sheshould know thatthereareother
unitscloserthatcould effectively handle whateveritisthatisbeingrequested.
Tr.117-118
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Apr-14-03 09:38am Frora-NAGIN GALLOP FIGUEREDO 305-854-5351 T-471 P.016/025 F-147
Captam BruceRoss initially recommended a 30-day suspension forBenfield.He testified
on direct:
Q.Let's talk about your recommendation.Inoticedthatyou
recommended that Officer Benfield's punishment should bea30day suspension.
Why did you recommenda30daysuspensionasopposedtotermination?
A-Iwas under the impression thatIdidnot have the authority to
recommenda termination and Pm notquitesurewhereIgotthatidea from,I fitfnif
itwasfroma previous adromstration,previous City Manager or Police Chief butI
didn't thinkthat anyone belowthelevel of a department head cau't[sic]have
authority to make thatkind ofrecommendation.
Tr.124-125
Q.If youcouldhave recommended that'shebe teaninated,wouldyou
haveor would you nothave?
A,I would have.In feet,even afterI made the maximum
recornmendation thatI Thought Icould make,Ievenhadconversations with the
Chief as he was consideringhisrecornmendation that,andhehadindicated that his
recornmendation was probably going tobe termination andIthoughtitwas
somethingthatwas appropriate forthis particular case.
Tr.127-128
On cross-exanrinafipn Ross testified:
Q.Chie£routinelyinthese patrols,youhavesixunit zones;correct?
A.Correct
Q.How manyofficersarerequiredtorespondonaroutinebackup?
A.It depends.
Q.It's very sulgectfve,isn't it?
A.Yes,itis.
Q.Wouldyou agree withthe statement that ifit'sa routine backup call
andotherunitsarecloserand mulnple unites are responding,thereisnoneed for
every single unitinthecityto respond toaroutinebackup?
15
Apr-14-03 09:39am From-NAGIN GALLOP FIGUEREDO 305-654-5351 T-471 P.017/025 F-147
A.If youknew all that and youknewthatthe officers are responding,
likeIsaidbefore,were adequate forofficer'ssafety,thenno,you don't needto
respond.
Q.Were thereanyother follow upcalls there from Ofiicer Hechavarria
askingforadditionalassistance?
A-I don't think so,no.
Tr.149
Q.Isn't ittruethatofficersarenotrequiredtocallinonaroutineback
upcallwhenthey are togoingtobe responding tothatbackup call?
Inother words,you've got Sve units out there,Ofiicer numberone
makesa routine request for backupona traffic stop,two nnfrg heartherequestfor
backupandreport in,theothertwoofficersareotherwise engaged.They arenot
required underthe rules and regulations of this department to call inandsaybythe
way,onthatroutinebackup call,I'm notgoinginthererightnow?
Al No,theyare not required todothat.
Tr,153
Q.Aren't officers supposefd]topatrola particular zone?
A.Generally speaking.It'sa fairly small cityandfor instance,togo
fromthepolicestationto,whichisinZone 4,togettoZone1,youhavetogo
throughZones 2 and 3,that type ofthing.
Soit's small andit'snot unusual foryoutonottobeinyourzone.
Q„And somebodyatthe police station,asyou mentioned earlier,would
have been abletogettherewithinaminuteor two,correct?Tothelocationthat
was given byOfficer Hechavarria?
A.Yeah,if they hadacar available to them andI mean depends on
what they weredoing.
Tr.-154
FormerCity Manager,Charles Scurr,testifiedthathewastheultimatedeciding authority
for the decisiontoterminate Benfield's employment.Helistenedto the tape andreviewedthe
16
Apr-14-03 08:39an Fron-NAGIN GALLOP FIGUEREDO 305-854-5351 T-471 P.018/025 F-147
transcript and other documents that accompanied the Disciplinary ActionReport.On cross-
examination Scurr testified:
Q.Isn't italsotruethat if enoughor sufficient unitsare responding to
therequestforbackup subjectively anofficerisnot obligated torespondtoa
routine 15?
A.Iwouldthinkthat probably is correct,yes.
Tr.238
Q.Is it yourtestimonythat if twounitsfrom adjoining zoneshad
arrived,that would havebeenadequatebackuponaroutine15?
A-On a routine,yes.
Tr-247
Cokes Watson,Chief ofPolice,testified on crosraxammation,as follows:
Q.Isn'tittruethat nearly 80 percent of the officers on patrol actually
responded tothat call?
A-About,yes.
Q.Isn't it also truethatthe officers who were responding tothat scene
acknowledged thattheyweregoingto back up Officer Hechavarria?
A.That's correct.I mean that's within the framework of them
responding backtothe radios astothey are going tobe taking the15with that
particular officer,yes.
Q.Those transmissions were putout through the airwaves where any
otherofficeronpatrolcouldhearit.
A,That's correct.
Q.Isn't it also true that there isno policy inthe City of South Miami
that demands thatonaroutine15everyofficerwhohearsthecallonthe radio
respond to provide that back up if it'sa routine back up and other officers are
responding?
A.That's correct.
Tr.273
17
Apr-14-03 08:39am Froa-NAGIN GALLOP FIGUEREDO 305-854-5351 T-471 P.019/025 F-147
^Q.Isn't it true,CMe^tlm tfOrScer Hechavarrk thought that n^
any kind ofphysical danger or imminent danger or an emergency,in need ofrescue,
assistance forbackup,hecouldhaveaskedfora2 -15?
A.Yes.
Q.Isn'tit true that he could have asked then also if he thought it was
evengreaterdangerfora3 -15?
A.Absolutely.
Q.Is the radio communications monitored here,atthe police
department?
A.Yes.
Tr.288
Q.Let me ask you,if not for the tape,you wouldn't have disciplined
Officer Benfield;correct?
A,If it's nothingthatwewereaware of
Q,Because the truth ofthe matter isyoudon't discipline oflfcers fornot
appearingfor routine 15s?
A.That would bea true statement;however,we discipline ofiScers who
call in and make a conscious decision to say that I'm not backing this person up
because Ihavea personal grudge against this particular person,whateverelsethat
they may conjureup.
Tr.289-290
Regarding Benfield's statement on me telephone that she wasn't going totake 15s for Hecliavarria,
Watsonwas questioned by UnionCounsel:
Q.Onthat statement alone,Chie£letmeaskthison recross,onthat
statement alone,did you ever find out from any source --let me ask you,did you
ever find out from OfiScer Benfield what she meant when she said hegotme
yesterday?
A-No.
Q.Didyoueverget any explanation from Officer Benfield for that
statement?
18
Apr-14-03 09:39am Fron-NAGIN GALLOP FIGUEREDO "'305-854-5351 T-471 P.020/025 F-147
A.No,I don't believe so.
Tr.336
Opinion and Conclusion
No one can question the seriousness ofa police ofiicer intentionally deciding not to
respond to another ofScer's request for back up.Discfcbnary action for such conduct is definitely
warranted and,in most cases,immediate termination would be appropriate,unless there are
mitigating circumstances that would warrant a lesser penalty.
It is clear that Benfield made a conscious decision not to respond to Hechavarria's request
for a routine 15 back up assistance on April 25,2002.The City rnaintains Benfield didn't have the
*
option not to respond,especially when her reason is because she doesn't like the ofiicer requesting
back up.Benfield's comments to Braun,the C^mrnunications Officer,shows that she obviously
had some dislike for something that occurred the day before between her and Hechavarxia.
However,Benfield testified that ifr^
to pick up the call No one asked her what the incident was tliat she nsrerr^d to when she said he
"got me yesterday57.From the testimony,^appears that the raora transniissfon,by fe
who were responding to the call for back up,occurred prior to Benfield's telephone discussion
with.Braun,so they would both know that two units were responding..
The testimony of City witnesses established that officers do not have to respond,or report
on the radio that they are not responding to a routine 15 request,if they know sufficient units are
responding.That isthe situation the Union claims Benfield was feu She knew from the radio
transmissions that two units were resr^nding so she didn't have to respond or call in.
The Union did not attempt to justify the remarks Benfield made to Braun in the telephone
discussion,however,the Union maintains that ternamation is too severe for a 14-year employee
with an otherwise good record.The arbitrator tends to agree.Had this been ahigher-level request,
such as a 2-15 or 3-15,discharge would be appropriate.Had Benfield not heard on the radio that
19
Apr-14-03 09:36am Froi-NAGIN GALLOP FIGUEREDO 305-854-5351 T-471 P.021/025 F-147
two patrol units were responding,and there were no other mitigating crrcumstances,discharge
would be appropriate tor intentional feilure to respond to the request tor a routine 15 back up,
because even routine traffic stops can present dangers,especially where there is a known warrant
outtorthe arrest ofthevehicle'soccupant
The city cited a number of arbitration awards that hold to the principle that where an
employer has met its burden of proving that an employee has conmmted misconduct,an arbitrator
should not substitute his decision for the employer's decision regarding the appropriate penalty.
Probably the most .cited case is Stockholm Pine Fitting Pn;J i la 160>i62 (McCoy,1945),where
thearbitratorstated:,•
.....Ifmanagement acts in good feith upon a fair mvest^tfon and fixes apenalty
not inconsistent with that imposed in other like cases,an arbitrator should not
disturb it!The mere ract that management has imposed a somewhat difierent
penalty ora somewhat more severe penalty than the arbftratorwouHh^
had the decision to make originally,is no justification for changing it...'xhe only
cmsrajstances under which a penalty imposed by management can be rightfully set
aside by an arbitrator are those where discrirnmation,unfairness,or capricious and
arrjftrary action are proved -in other words,where there has been abuse of
discretion.
This arbitrator has cited the Stockholm case many times in upholding rnanagement's
decision regarding me appropriate penalty.However,there is more to deternammg just cause than
just making a finding that an employee wnrajfrted misconduct.In d^terrnming whether there is
just cause for discharging an employee,the arbitrator needs to consider whether the degree of
discipline is reasonably related to the seriousness ofthe offense.In Grief Bros.Cooperage CrtrpT
42 LA 5559 557 -559 (Daugherty,1964),Arbitrator Carroll Daugherty developed a seven-fictor
test that has been widely accepted among arbitrators,mdeterminnig whether just cause existsin
any particular case,the fcto
6.Has the company applied its rules,orders and penalties evenhandedry and
without djscrrmmation to all employees?
Note 1:A "no"answer to this question requires a finding of discrmimation and
warrants negation or modulation of the discipline imposed.
20
Apr-14-03 08:40am From-NAGIN GALLOP FIGUEREDO 305-654-5351 T-471 P.022/025 F-147
7.Was the degree of discipline administered by the company in a particular
case reasonably related to (a)the seriousness of the employee's proven offense and
(b)the record ofthe employee in his service with the company?
In Indiana Convention Center,98 LA 713,719 (Aaron S.Woh%1992),the arbitrator
explained hisdefinitionofjustcauseas follows;
...the essence of "just cause"is that the employer,in carrying out its
inherent or express right to discipline employees,must do soina manner that is not
unreasonable,arbitrary,capricious or discrnnmatory.That is the quihte^sential
meaning of*5ust caused in the labor contract setting.
In Airfoil Forging Textron,106 LA 945,950 (Joseph A.Klein,1996),the arbitrator noted
that the initial determination of the degree of penalty to be irnposed is primarily the fimcnon of
management.However,the second fector that mustbe considered in all cases whenthe
termination penalty is imposed is,"Did the penally fit the crime",and was it a suitable penalty as
applied to the grievant in light of all mitigating,extenuating and aggravating circumstances.
Arbitrator Klein cited Marion Power Shovel Company-64-3 ARB 19155 (1964),one ofhis frrmer
decisions,where he stated:
A discharge isthe ultimate penalty with respect to an employee's
relationship with his employer,having been often aptly referred to "economic
capMpuinshrnent".To conclude that a discharge was for proper cause,the penalty
must not only "Gl the crime"but it must bea suitable penally applied to the
individual involved.Before discharging an employee,itis incumbent upon the
Company to consider an employee's length of service,Ms exemplary record,and all
other mitigating or extenuating factors;For only after a careful analysis of all
circtimstances can a discharge be deemed tobe for proper cause under the
provisions ofthe Collective Bargaining Agreement
Arbitrator Harry H.Piatt is quoted in EDcouri &Elkouri,as follows,regarding an
arbitrator's authorityto modify penalties:
In many disciplinary cases,the reasonableness of the penalty imposed on an
employee rather than the existence of proper cause for disciplining him is the
question an arbitrator must decide.This isnotso under contracts or submission
agreements which expressly prohibit an arbitrator from rnodirying or reducing a
21
The Union presented docnmientation that supports its claim that the City has not applied its
rules and penalties even-handedly in srtuations where officers fail to respond to routine 15 requests
for back up.Ofiicer Everett was issued a supervisor's caching for Mure to respond toa female
officer's request for aroutine 15 back up while she was j^epariug to stop a vehicle with three male
occupants.Everett's reason for Ming to respond was that he was in the North end ofthe sone'and
he thought a closer unit would back up the officer.The supervisory coaching report issued to
Everett is an example of fixing a penalty inconsistent with that imposed in other like cases.
The arbitrator finds thatthe Everett and Benfield circumstances are similar.Each made a
decision not to respond toa routine 15 back up request The difference that the City focuses on is
Benfield's expression to Braun that she wasn't going to respond because of something Hechavarria
did to her on the day before.However,the evidence is clear from the radio trarismisston that
Benfield knew other officers were responding.Benfield presented Wrebutted testimony that she
backed up Hechavarria before and that she would have attempted to do so on April 25,2002 if no
otherbackupunitshadresponded.
There was little orno investigation of the Benfield incident by the City.The Internal
Affairs Unit was not requested to perform an invest^ation.No statements were taken from
Hechevarria or Benfield-There was no check of the records to determine the level of discipline
that was issued for any Mures byother officers to respond to routine 15 back up requests.
22
Apr-14-03 O0:4Oara Fron-NAGIN GALLOP FIGUEREDO *''305-854-5351 T-4H P.024/025 F-147
The arbitrator does not condone the statements made by Benfield in the telephone
discussion with Braun.She obviously should not have made the remarks.At a nnmmum,her
conduct violated Department Rule 3.08.Common sense would dictate that personal disputes
shotiMMtbeafectormdeterniin^IfBenfield had an on-
duty gripe with sornethihg Hechavarria did the day before,she should have reported it to her
supervisor or filed a grievance.However,Hib City bears some xesponsfcitiry for the
arnrrmntcations Officer took:no steps to get Benfield to respond to the request from Hechavarria.
Braun was not declined for going along with the corxversation.It appears,from the testimony,
that the City did not place much,if any,emphasis on BerjfieH»s relatively clean work record
dttrmg her 14 years of service.There was no testsnony from Hechavarria,or arry evidence that
there was an ongoing feud between Benfield and Hechavarria.Had the City conducted a more
thorough investigation,it may have concluded that a penalty less than discharge would have been
more appropriate for BenfieM's remarks to Braun during their telephone discussion.
The arbitrator concludes that the City has firiled to prove that Benfield was obligated to
respond to Hechavarria's request for a routine 15 back up on the date in question,because she
presentedun-rebutted tesrin^xry thatsheheardon t^
It was well established through City witnesses that officers do not have to respond to routine 15
back up requests when they know sufncient ^are responding.
Based on all of the circumstances and mitigating fectors in this case,the arbitrator
concludes that the discharge of Benfield was not for just cause.However,in view of ths feet that
Benfield is not without feult for her tost time from work,she must bear a penalty in the way ofa
suspension,without pay,for aperiod of60 calendar days from the date ofher discharge.
23
Apr-14-03 08:41ara Fron-NAGIN GALLOP FIGUEREDO "''305-854-5351 T-471 P.025/025 F-147
Award
The discharge ofDeborah Benfield on September 20,2002 was not for just cause-Benfield
shall be reinstated,fortirwith,to tte Tho City sh^Q^nge ibs disch^ge
to adisc^linary suspension of60 calendar days,without pay,from the date of discharge.Benfleid
shall be reinstated without loss ofsenjbrrty and other benefit
terms of the Collective BargairnYig Agreeraem Benfield shall receive back pay for
the period after the 60-day suspension urM she is reinstated,rrimus any M
24
Harold D.Smith Date
Arbitrator