In the 29-page arbitrator’s report regarding back-on-duty Ohio Division of Wildlife officer Matthew Roberts the state comes under heavy fire.
And not just from the Fraternal Order of Police, the union which represents the agency’s commissioned officers, including Roberts, either.
The arbitrator – attorney Susan Grody of Cleveland – blisters the Ohio Department of Natural Resources by firing Roberts in large measure because he violated a work time-recording policy that came into being only after he hunted while on duty.
At issue was how Roberts hunted while on duty during the 2010 Ohio general firearms deer-hunting season, specifically Dec. 2 and 3.
Assigned to Clinton County, Roberts traveled to Brown County where he hunted with defrocked former state wildlife officer assigned to Brown County, Allen Wright.
Roberts did use his state-issued motor vehicle and was wearing his state-issued slacks. Those stipulations are explained in the arbitrator’s document as a routine matter that would allow an officer to leave a hunt and immediately engage in an official law-enforcement activity.
It is explained further in the document that this is exactly what transpired during Robert’s trip from Clinton County to Brown County.
At the heart of the matter is how wildlife officers account for their hours worked as well as how these same commissioned personnel did so before the Natural Resources Department issued new hour-accounting guidelines and rules.
Thus the bulk of the 29-page document records why the Natural Resources believed Roberts violated the state’s time-recording policy and why the FoP says the officer simply followed the work-time-recording policies of the day.
And each side doesn’t mince words in stating its respective case.
For the Natural Resources Department that excommunication of Roberts includes saying of him: “… dishonest, was a failure of good policy, and brought discredit to (the) ODNR.”
The Natural Resources Department further argues in the arbitrator’s report that “(f)alsifying reports is one of the most common unethical acts within the ranks of law enforcement.”
Problem is, says the FoP in response, it had been a 30-year policy for the Wildlife Division to extend “flex” time to its commissioned officers rather than hold them to an 8/40/5 work week schedule, called “Straight 8” in the document.
And this flex time policy had become so ingrained within the culture of the Wildlife Division’s commissioned staff that its mention was even included into the officer-cadet academy training protocol, the Union argues in the 29-page arbitrator’s report.
Being a wildlife officer is not a 9-to-5 job that involves punching a time clock, the FoP continues with its argument in the document.
“The position description states they are ‘on call 24hrs., 7 days per week.’ Flextime is not only permitted, it’s a necessity,” the document records the Union as saying.
Consequently, “What the Grievant (Roberts) did was no different than what wildlife officers have been instructed to do since 1980,” the FoP continues in the 29-page arbitrator’s report.
After allowing each side to throw its best punches the arbitrator weighs in, and her reaction is anything and everything but favorably inclined to the Natural Resources Department’s statements.
The arbitrator notes that it wasn’t until 2012 – two years after Roberts admitted hunting during the 2010 general firearms deer-hunting season – that Wildlife Division commissioned officers were instructed to record their actual time worked rather than the here-to-fore accept flextime approach.
“This is certainly what should occur,” The arbitrator says in her findings. “Doing so would make the Wildlife Officers’ timekeeping practices in line with the Parties’ Agreement and (with) state and federal wage and hour law.”
“Indeed,” the arbitrator also notes, Roberts “often worked more hours in a week than he was paid for.”
“It would be fundamentally unjust – in the context of the Parties’ collectively-bargained Article 19 standard of just cause – to hold the Grievant (Roberts) to a standard that did not get communicated to him until after the days in question for which he has been accused of wrongdoing.”
“The state cannot retroactively apply its 2012 timekeeping procedure to 2009 and 2010,” the arbitrator concludes in her remarks.
As a resul, the arbitrator ordered that Roberts be reinstated as a wildlife officer with all health benefits and full back pay minus any compensation such as unemployment benefits.
In the matter involving David Warner, Roberts’ supervisor, his case is before the Franklin County Common Pleas Court.
Warner was discharged at the same time and for the same reasons as was Roberts but because the former was an exempt supervisor he is neither protected by any collective bargaining agreement nor represented by any union.
However, an arbitrator has determined that Warner too should be reinstated to his position with the Wildlife Division.
Also, the related misdemeanor charges both men agreed to in Brown County Common Pleas Court are not voided by the arbitrator’s findings, says Jessica Little, the Brown County prosecutor.
- Jeffrey L. Frischkorn