In Re: CITY OF PORT ARTHUR, TEXAS, and the PORT. ARTHUR POLICE ASSOCIATION, American Arbitration Association Case No. AAA-01-17-003-2984, Indefinite Suspension (Discharge) of Police Detective Mickey Sterling MINER: DON B. HAYS - Selected by the parties APPEARANCES: For the Company - For the Union — BETTYE LYNN, ESQ. ROBERT THOMAS, ESQ. Lynn Law, PLLC Attorney and Counselor at Law 306 West Broadway Avenue 5100 Westheimer Fort Worth, TX. 76104 Suite 105 Houston, TX 77056 THE ISSUES Based on a general (non-specific) stipulation by the parties (representatives) the following issues appear to have been properly raised for resolution by this Hearing Examiner (arbitrator): Issue No. 1; Did the City of Port Arthur, Texas, Preponderantly prove the truth and correctness of the allegations of wrongdoing contained within Port Arthur Police Department Chief Patrick Melvin’s notice of indefinite (disciplinary) suspension (dismissal), issued to Port Arthur Police Officer (Detective) Mickey Sterling on or about June 2, 2017? Issue No. 2: If the answer to Issue No. 1 is YES, did the city preponderantly prove it had just cause to permanently dismiss Port Arthur Detective Mickey Sterling effective with thedepartmental notice, based on such preponderantly proven violations? Issue No. 3: If the answer to Issues No. 1 or No. 2 is NO, what should be the appropriate remedy?! STANDARD OF PROOF In the absence of a stipulation, published policy or Collective Bargaining Agreement (CBA) mandate, our research and experience convince us that management’s adverse action against this employee should be sustained only if such personnel (disciplinary) action is supported by a preponderance of the city’s credible evidence.” Preponderance of the evidence has often been defined by the courts and arbitrators “as the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” More specifically such (preponderant) standard requires the “trier of fact (hearing examiner) to be convinced that the existence of an alleged fact is more probable than its nonexistence before ' We note parenthetically that both representatives agreed that under the provisions of the Texas Local Government Code and the local collective bargaining agreement, if we find that Chief Melvin preponderantly proved that he has just cause to take some disciplinary action against Police Officer ‘Sterling, but the city’s evidence does not establish the reasonableness (proportionality) of assessing termination as the appropriate sanction, we are authorized to reduce such punishment to what we consider more appropriate, based on the preponderant evidence, notwithstanding certain Texas State Court decisions which arguably restrict (place limits on) the permissible length of a police officer’s disciplinary suspension. * Because the question of quantum of proof focuses primarily on the arbitrator's (Hearing Examiner's) deliberation process (not on each party’s burden) the standard of proof question essentially falls to the arbitrator (Hearing Examiner). See Elkouri & Elkouri, How Arbitration ‘Works, 6" Edition, Chapter 15.3.D.iia Quantum of Proof in Discharge cases, ‘See also Fairweather, Practice and Procedure in Labor Arbitration, 1999, (4" Edition). 2he/she may find in favor of the party who has the burden to persuade [the arbitrator] of that disputed fact’s existence.’* However, when applying such proof standard if the credible evidence on a particular issue appears to be “evenly balanced” between the two patties’ conflicting positions, or where there exists reasonable doubt as to the side on which the credible evidence preponderates, the individual/entity bearing the proof burden is often viewed as having failed to successfully carry that particular (disputed) point.’ We would also note that there appears to be a juxtaposed principle of practice/procedure, whereby when two reasonable possibilities can be inferred from the totality of the credible evidence, neither party’s position can be conclusively ruled to have been persuasively proven. JUST (PROPER) CAUSE The expressed/implied standard for arbitral review of disciplinary’ actions, at least in most Texas cities appears often to be expressed as “ust cause.” And, unless otherwise described by the parties, such term is generally viewed as being synonymous with the terms “cause,” “proper cause” or “reasonable cause.”” Furthermore, we are unaware of any * Seo Hill & Sinicropi, Evidence in Arbitration, BNA 1980/1981. ‘Moberly v. Sec'y of HLS, 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (other citations omitied), 5 See Smith v. United States, 557 F. Supp. 42, 51 (D.C. Ark. 1982). |; McNamara v. United States, 199 F. Supp. 879, 883 (D.C. 1961). 7'S.D, Warrant Co. v, United Paperworkers” Intemational Union, 846 F.2d 827 (1* Cir, 1998), 3