STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
__________________________________________________________
)
YAKIMA POLICE PATROLMANS )
ASSOCIATION )
)
Complainant, )
) PERC CASE NO.
vs. ) 19741-U-05-4998
)
CITY OF YAKIMA, )
)
Respondent. )
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TRANSCRIPT OF HEARING
VOLUME I
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BE IT REMEMBERED, THAT THE ABOVE-ENTITLED
CAUSE CAME ON FOR HEARING ON THURSDAY, MARCH 2, 2006, AT
9:00 A.M. BEFORE
CARLOS R. CARRION-CRESPO, HEARING OFFICER, AT
129 NORTH 2ND STREET, YAKIMA, WASHINGTON.
APPEARANCES:
JAMES M. CLINE, CLINE & ASSOCIATES, APPEARING
FOR AND ON BEHALF OF THE YAKIMA POLICE PATROLMANS
ASSOCIATION;
BRUCE L. SCHROEDER, SUMMIT LAW GROUP,
APPEARING FOR AND ON BEHALF OF THE CITY OF YAKIMA.
WHEREUPON, THE FOLLOWING PROCEEDINGS WERE
HAD.
I N D E X
WITNESS: DIRECT CROSS REDIRECT RECROSS
ROBERT HESTER
(by Mr. Cline) 28 164
(by Mr. Schroeder) 113 171
ANTHONY PATLIN
(by Mr. Cline) 173 188
(by Mr. Schroeder) 182
MICHAEL LINDGREN
(by Mr. Cline) 192 222
(by Mr. Schroeder) 215
EXHIBITS
EXHIBIT NUMBERS: ID EVD
1 Collective Bargaining Agreement by 28 58
and between City of Yakima and Yakima
Police Patrolmans Association, Effective
January 1, 2004 through December 31, 2005
2 YPD Internal Investigation Response 34 58
Request to Officer Mike Rummel from
Captain Greg Copeland; 2/21/05
3 YPD Memorandum to Officer M. Rummel 37 58
from Capt. G. Copeland; 3/28/05
4 Document - Section One, Disciplinary 39 58
Action; Section Two, Fitness for Duty
5 YPD Memorandum to Cpt. Copeland from 41 58
YPPA Board; 06-27-05
6 Investigative Log 45 58
7 YPPA, Date: September 17th, 2005 58 86
(Updated) from R.D. Hester; Ref:
2005 dates
8 Letter from PERC to Sofia Mabee and 86 90
James M. Cline; April 7, 2005
9 Respondent City of Yakima's Answer 87 90
to Complaint for Case 19206-U-05-4882
10 Notice of Hearing for Case 87 90
19206-U-05-4882
11 Transcript of Hearing for Case 88 90
19206-U-05-4882
12 YPPA Meeting with Chief Granato, 91 112
Friday, May 27th, 2005, 1330 Hours,
Topic for Discussion
13 Handwritten document 93 112
14 Document dated May 27, 2005, to 103 112
Documentation File from R.D. Hester,
Ref. ULP Drug Testing-PERC/Officer
M. Rummel
EXHIBITS
EXHIBIT NUMBERS: ID EVD
15 Memorandum to Officer Mike Rummel from 106 112
Chief Granato; July 5, 2005; Notice of
Termination
16 Chapter 7.00.00 Rules of Conduct 107 112
17 Last Chance Employment Agreement 114 115
between City of Yakima and Michael
Rummel
18 YPD Memorandum to Officer M. Rummel 116 118
from Chief Granato, Notice of
Pre-Termination Hearing; June 2, 2005
19 YPD Detail Report; 6/16/05 118 120
20 Internal Investigation Summary 124 125
* * *
P-R-O-C-E-E-D-I-N-G-S
HEARING EXAMINER: The hearing will be in
order. This is a formal hearing before an examiner
appointed by the Public Employment Relations Commission in
the matter of a complaint of unfair labor practices filed
by Yakima Police Patrolmans' Association against the City
of Yakima, Case No. 19741-U-05-4998. The Examiner is
Carlos Carrion-Crespo.
Will Counsel please state their appearances
for the record. For the Complainant?
MR. CLINE: James M. Cline for the
Association.
HEARING EXAMINER: For the Respondent?
MR. SCHROEDER: Bruce Schroeder.
HEARING EXAMINER: The official reporter
prepares the only official transcript of these
proceedings, and all citations and briefs and arguments
must refer to the official record. All matter that is
spoken in the hearing room while the hearing is in session
is recorded by the reporter. Requests to make
off-the-record remarks should be directed to the Examiner
and not to the reporter.
The reporter will provide copies of the
transcript to any party at an established price per page.
Any party desiring a copy of the transcript should make
arrangements directly with the reporter during a recess or
after the close of the hearing.
After the issuance of the transcript, one or
more of the parties may desire to have corrections made in
the record. All such corrections, either by way of
stipulation or motion, should be forwarded to the
Examiner. Statements of reason in support of motions or
objections should be as concise as possible. Objections
may, upon request, be permitted to stand to an entire line
of questioning. Automatic exceptions will be allowed to
all adverse rulings.
It is the duty of the Examiner to obtain a
clear and complete factual record on which the Examiner
and the Commission may discharge their duties under the
statutes and rules. The Examiner will not undertake the
responsibilities of the Complainant with respect to the
prosecution of its case or the responsibilities of the
Respondent with respect to the presentation of its
defense.
Following the close of this hearing and the
admission of final arguments, the Examiner will issue
findings and orders. These findings and orders may be
reviewed by the Public Employment Relations Commission
under its rules. Until such time as the Examiner issues
findings and orders, all motions and arguments should be
directed to the Examiner.
Having said that, I would like to ask if
there is any preliminary motions before we begin the
presentation of the evidence?
MR. SCHROEDER: None for the City.
MR. CLINE: None by the Association.
HEARING EXAMINER: Does the Association wish
to make an opening statement before presenting the
evidence?
MR. CLINE: Yes, we would.
HEARING EXAMINER: Please go ahead.
MR. CLINE: Your Honor, you already have
before you the amended unfair labor practice complaint
that briefly provides an overview of the allegations. But
what I'd like to do is step back a little bit and provide
briefly a little more context of those allegations.
I think it's important to understand that
these allegations that are before you arose after the
Association had already filed one unfair labor practice
complaint against the City. And we had originally filed
this as an amended complaint because we believed there was
a nexus between the two on the face of the allegations
because the amended allegations referred to the filing of
the initial complaint.
In the Association's view the Association
has a statutory right to file complaints with PERC and
have those complaints heard without fear of retaliation or
retribution to either the Association representatives or
the members that it represents.
The Association initially filed a complaint
alleging that the City made unilateral changes in its drug
testing policy and circumvented the Association as a
bargaining agent by signing a side agreement waiving the
collective bargaining protections by signing a side
agreement directly with one of the members.
It's also important to understand not only
the context of that initial ULP complaint but also the
broader relationship between the Association and the City.
Because this is a discrimination claim it does not occur
in a vacuum, it occurs in the context of that
relationship, whether that relationship is good or bad or
not becomes very relevant, we think, when there's a
discrimination complaint presented.
The context of the relationship that
occurred between the parties, i.e. the City and the
Association, at the time of this complaint is that the
City had recently hired a new police chief. The new
police chief came from Texas, where we had familiarity, he
professed, about Texas collective bargaining law. In
fact, he claimed to be very knowledgeable about those laws
because he had been both a manager as a captain for the
Corpus Christi Police Department and he claimed to be a
Union representative there and indicated to the
Association officers a number of times in his early
dealings with the Association that he knew collective
bargaining well.
And in fact the Association soon discovered
that what the Chief was aware of wasn't Washington
collective bargaining. What the Chief was aware of was
Texas collective bargaining. Texas is a meet and confer
state with very circumscribed collective bargaining
rights.
The Chief came to Yakima Police Department
in his mind with the model of collective bargaining that
he had been familiar with out of Texas and he began to act
on that model of collective bargaining. That model of
collective bargaining calls for a very circumscribed role
for the Union.
It was very shortly in his relationship with
the Association that he learned that the Association took
a much different and much broader view of its collective
bargaining rights. And almost from the outset the Chief
and the Association had difficulties in their relationship
because the Chief, in a number of areas, sought to make
decisions unilaterally after only briefly conferring with
the Union and not engaging in true Washington style
Washington Law required collective bargaining.
This put a strain on the relationship
between the Association and the City and particularly with
the Police Chief. That relationship took a turn even for
an increased strain when the Association elected a new
president early in 2005 who took perhaps an even more
aggressive role in asserting the Association's collective
bargaining rights than the prior president had. And it
was almost immediate upon the election of the new
president that the relationship grew even more sour.
It was about the time that the new
president, Bob Hester, was elected that the Association
also filed the initial ULP regarding the drug testing
allegations. That initial complaint was filed in
February, approximately February of 2005.
Now, in discrimination complaints timing
often becomes an important element, so let me try to tell
the events in near as chronological order as I can because
I think they become relevant because of what happened
first.
Let's step back a little bit in terms of
timing. I've talked to you about the relationship with
the Chief and the Union filing this unfair labor practice
complaint in early 2005.
Let's talk about Mike Rummel. He's a party
or he's a focus of this complaint because it's his
termination which the Association is claiming was wrongful
and was unlawfully discriminatory. Mike Rummel is a
longstanding officer with the Yakima Police Department.
He was a very good police officer for the Yakima Police
Department. He had, as law enforcement officers sometimes
have, some personal problems that affected off-duty
problems that indirectly affected his work.
In this case back in 2002 he had an off-duty
DUI, driving under the influence, charge. It resulted in
a plea agreement to a stipulated Neg 1 or Negligent
Driving 1 as a plea bargain. He was disciplined for the
City for this off-duty conduct, and it resulted in a Last
Chance Agreement with a suspension. And the Last Chance
Agreement required him to get evaluated for alcohol and to
follow whatever treatment the alcohol evaluator required
and some other stipulations. Mike Rummel did, in fact,
follow through on those and returned to his position as an
effective officer with the Yakima Police Department.
In the fall of 2004 he began having personal
problems, again related to stress, possibly related to his
use of alcohol. Mike Rummel is not an alcoholic, but he
has occasionally had off-duty use of alcohol that has
caused him problems that led to some emotional health
problems that resulted in the City intervening in some
kind of off-duty episode between Mike Rummel and a
girlfriend.
What resulted out of that was some
suggestion by the Captain that Mike Rummel shouldn't be
calling his girlfriend at work. His girlfriend actually
worked for the Yakima Police Department. The parameters
of that order actually remain a little bit gray and
shrouded in mystery because Mike Rummel is a police
officer and his girlfriend is a dispatcher for the City
and so it would be actually impossible for him to fulfill
the duties of his job and not call her at work. But
anyway, there was this sort of directive of you're not
supposed to call her at work, never put in writing.
Later in the -- shortly after that directive
or suggestion was put into place there was an occasion
which the girlfriend called Mike Rummel and he returned
her phone call at work where she had placed the call from
and somehow this information gets turned over to the City
immediately, at which point they begin an investigation.
The City looks at the context of it. It's
pretty apparent to all concerned that even if this is some
kind of violation, it's obviously a pretty minor
violation. But the City is concerned at this point more
with Mike Rummel's mental health and use of alcohol and
they want him to go back to the City psychologist to be
evaluated to determine if he has an alcohol addiction
problem of some sort.
Mike Rummel, in fact, goes to the
psychologist, the psychologist determines that he's not an
alcoholic but makes certain suggestions, including a
suggestion that he maintain a period of sobriety of some
90 days. And during that time the City wants to assure
that he will maintain this position of sobriety, and they
work out -- begin to work out an arrangement with the
Association to, in fact, returning Mike Rummel to work.
They talk about a return to work order.
They wanted to have him submit to random drug testing or
random alcohol testing. Obviously at this point because
this issue of the ULP had already arisen, there is a
concern about how exactly the City's going to do this.
But the parties agree that they'll enter into some kind of
agreement that will waive the reasonable suspicion
requirements of the City's drug testing policy and allow
random testing for this period of time.
So there's an agreement reached to do this
which permits Mike Rummel to come back to work. And, in
fact, you'll see in the paperwork today there was even an
order entered by the City while they were relating to the
investigation of this phone call at work issue where they
extended the duration of the investigation specifically
for the purpose of reaching a return-to-work agreement
with the Union.
Now, while this is going on, the Association
had, by the time the agreement to work arrangement is
being entered, the Association had filed its ULP, but by
all indications the Chief's initial reaction to the ULP is
not to take it very seriously. In fact, when he meets
with the Association shortly after the ULP is filed, he's
laughing about the Association's ULP and taunting them
with the fact that it was somehow untimely, that it wasn't
brought in time, and telling them it's going to be thrown
out on some procedural grounds. That, apparently, was his
belief at the time or what he told them. The formation of
that belief, we don't entirely understand, but that was
the representation he made.
Well, the spring goes on, there's another
off-duty work incident involving Mike Rummel, again, what
the Association would view as a rather minor matter
involving him going to a local club to try to pick up a
couple of individuals who had been drinking and who needed
a ride home.
There's some disagreement about what happens
during this incident. Mike Rummel's version is that he's
trying to remove these two women from the lounge and he's
trying to call them and find them and can't find them.
There is a cover charge that is to be charged at the door
for entering this establishment. At some point, as Mike
Rummel recalls it, somebody points out to the bouncer at
the door that he is a police officer, just let him in, and
they ask him if this is true, and he shows his badge.
The City, apparently, had some other
witnesses who said, well, Mike Rummel is the one who
brought up his law enforcement credentials first.
Regardless, the Association views this as a
minor matter, if anything at all, because the evidence
that is turned up during the investigation of his use of
his identity of his law enforcement officer confirms that
any individual, whether a law enforcement officer or not,
would have been accorded a privilege to go into this
facility without paying the cover charge and remove this
individual -- these individuals. But nonetheless, the
City's undertaking this investigation of this minor matter
to determine what's happened.
The Association at this time is fully
expecting this matter to be resolved and for Officer
Rummel to continue with his duties with the police
department. However, there's a change -- a continued
change in evolution in the relationship as we move through
the spring of 2005, the relationship between the City and
the Association.
Among the changes is now, apparently, the
Chief has discovered that this matter isn't just going to
be dismissed summarily on some kind of procedural ground.
In fact, a preliminary ruling on the first ULP complaint
is filed, the City has to file an answer. And all within
a matter of a few weeks after the preliminary ruling being
issued and an answer having to be filed, he's in a meeting
with the Association representatives, and they're talking
about a number of pending issues and particularly the
status of a number of pending discipline cases.
One of the discipline cases that comes up is
the pending Mike Rummel case. When the Mike Rummel case
is raised, the Chief tells the Association officers that
because you haven't dropped the unfair labor practice
complaint I'm going to have to fire Mike Rummel.
The reaction of the Association officers at
the time, frankly, was shock. They were shocked that the
Chief would say that. They were shocked that he would
think that. There was, from the Association's
perspective, no logical nexus or connection whatsoever
between the ULP complaint involving drug testing and Mike
Rummel's pending disciplinary investigation. They didn't
even understand why the two matters were being raised,
other than it appeared and the Association perceived it as
a threat that if they exercise their statutory rights to
prosecute their initial ULP, one of their members in a
matter entirely unrelated to that ULP complaint would lose
his job.
The Association did not back down on its
position in the face of that threat. They were not going
to drop the ULP simply because the Chief exercised what
they viewed as this heavy-handed power play. The
Association persisted in its ULP, and the Chief proceeded
to fire Mike Rummel.
Now, in the course of firing him, the City
invoked what they called this previous Last Chance
Agreement that I referred to back in 2002. That Last
Chance Agreement indicated that if he had further
violations, that he would be terminated as an officer.
The Association's testimony it intends to
put on at this hearing is that there was a clear
understanding of the meaning of that requirement at the
time the Last Chance Agreement was entered. And that
clear understanding was that those violations had to be
alcohol-related violations. He was put on the Last Chance
Agreement in the context of a DUI, an alcohol infraction,
and it would only be infractions of that kind that would
result in his termination.
In fact the Association would suggest that
the evidence will show the City fully understood that that
was the meaning of the Last Chance Agreement, for they had
made efforts and in fact did return Mike Rummel to work
after the first incident involving the alleged telephone
call to his girlfriend. So that was fully understood and
was only used, according to the Association, as an excuse
to justify the Chief's power play in terminating Mike
Rummel in retaliation for the Association's exercise of
its statutory rights.
That is what we believe the evidence will
show at the hearing today, and I intend to call probably
four witnesses today at the outset to establish that case.
HEARING EXAMINER: Thank you. Do you have
an opening statement you'd like to make now, or would you
like to reserve?
MR. SCHROEDER: At this time, if I could,
please.
HEARING EXAMINER: Go ahead.
MR. SCHROEDER: The City believes that the
testimony is going to be very different than what you've
just heard Mr. Cline predict for you.
Let me begin by indicating that we believe
that the ultimate issue will be that there's absolutely no
linkage between the termination of Mike Rummel and any
interactions between the YPPA and the City of Yakima,
whether it's the Chief or other representatives of the
Department, other personnel in the City, that the
situations are completely separate and apart.
Again, I won't repeat some of the factual
stuff that Jim has already indicated. But suffice to say
that Officer Rummel came on board in 2000 with the Yakima
Police Department. He did have the DUI incident that