Ashwaubenon officer grievance headed to arbitration
By Kevin Boneske
ASHWAUBENON – A lawyer representing the village’s Public Safety Officers Association has indicated arbitration will be sought related to a grievance filed on behalf of an Ashwaubenon public safety officer.
The officer, Jamie Zynda, was directed to review the village’s anti-harassment policy and dress code following his off-duty participation in a golf outing last August.
Zynda was reported to village officials as having been seen wearing a thong at the event.
The matter was considered Tuesday, April 23, by the Ashwaubenon village board, which met in closed session at the end of the meeting after hearing from the attorney in open session.
Aaron Halstead, an attorney from the Hawks Quindel law firm representing the union, said he brought the matter before the board as the third step in the grievance process, which, if not resolved, is the last step prior to going to arbitration.
As part of the public safety union’s labor agreement with the village, the grievance procedure includes an initial step of submitting a complaint to the public safety director and, if not resolved, a second step of the union employee submitting a complaint to the village manager.
At issue is what Halstead called a “letter of direction” given to Zynda last December from Public Safety Chief Eric Dunning following an investigation into the Aug. 3, 2018, Fraternal Order of Police (FOP) golf outing Zynda and other Ashwaubenon officers participated in at the Brown County Golf Course while off-duty.
“At some point, some months later, the village approved an investigation into that outing, and the gist of it was that one of our officers, one of our public safety officers, had dressed up in a way that someone thought was inappropriate at the golf outing,” Halstead said. “So outside counsel was hired by the village to investigate this incident.”
During the outing, according to a report of the investigation prepared by that outside attorney, Geoffrey Lacy, Zynda “wore very short jean shorts and rolled his shirt into a halter top design” and “chose to remove his jean shorts to reveal that he was wearing a thong.”
The report further states it is unknown how many people outside the other officers in Zynda’s golfing foursome witnessed that, however, “photographs and video were taken of him teeing off while wearing a thong and no other pants. He continued ‘undressed’ in this fashion while he teed off and golfed for some time.”
Lacy’s report found Zynda “did not have any intent to harass, make uncomfortable, or otherwise infringe on the rights of others, but was rather simply having fun.”
However, Lacy concluded the FOP golf outing – though attended while off-duty, organized by an independent entity (the FOP) and not expressly identifying the golfers as an Ashwaubenon Public Safety team – “is nonetheless reasonably treated as an extension of the workplace.”
Lacy also concluded Zynda’s behavior at the golf outing “was unusual, but not per se unlawful or prohibited by policy.”
The recommendation from Lacy was to provide Zynda with “a non-disciplinary Letter of Direction or Counseling Letter reminding him that he represents the Department not only when on duty, but also when engaging in events or in the community such that he is identified with the Department and as Law Enforcement generally.”
Lacy said “intentionally provocative, particularly sexually provocative behavior, such as golfing while wearing nothing but a thong (at least as to pants) reasonably appears to be intended to be sexually provocative, whether done by a man or a woman.”
A Dec. 18 letter from Dunning to Zynda with a directive to review the village’s anti-harassment policy and dress code also stated Zynda “should consider whether your actions or dress, if viewed publicly, has the capacity to harm the reputation, image or credibility of Ashwaubenon Public Safety, yourself, or others as an officer of the department.”
Dunning said conduct of officers, whether on or off-duty, that may impair the department’s credibility “is harmful to the success of the department and to individual officers.”
The letter concluded by stating any actions harmful to the department’s mission “may be subject to discipline.”
In his appearance before the board seeking to have the letter provided to Zynda rescinded, Halstead pointed out participation in the FOP is voluntary and none of the Ashwaubenon officers wore anything at the outing identifying them being with the public safety department.
In addition, Halstead said no one to his knowledge has filed a complaint about the event.
“I have yet to see there was a written complaint, a grievance, or any person who really came forward and said, ‘I was offended by anything, or I feel I was harassed or imposed upon at this outing,’” Halstead said.
Though Zynda was not found to have violated department policy, Halstead said the letter from Dunning to Zynda is seen as a criticism of Zynda’s conduct at the golf outing.
“There’s no suggestion, with respect to our officer (Zynda), he did anything to create an unhealthy or unsafe work environment, that any person – whether employee or non-employee – felt harassed in any way, and there has been no reported instance of harassment or discrimination by the officer, including at this event,” Halstead said.
The board, after meeting in closed session, did not recognize the matter brought before it as a grievance, and if found to be a grievance, decided it would deny it.
Halstead said it will be the union’s position with the matter going to arbitration with the Wisconsin Employment Relations Commission “that what was going on here was purely personal conduct outside the workplace, not sponsored by the village.”
“The officers were not portraying themselves as village employees or members of the department,” he said. “Nonetheless, it’s being treated as though it was some type of extension, or some sort of auxiliary event related to the department, and that’s just not the case.”
Because it’s the union’s position the letter shouldn’t have been issued to Zynda, Halstead said the matter meets the definition of a grievance related to the “misinterpretation of or misapplication of a policy or practice relating to wages, hours or conditions of employment.”
“We are grieving a letter that on its very face states that the officer’s conduct apparently, according to the letter, was somehow provocative or intentionally provocative, and that the village has the right to tell the officer what to do, how to dress, when he’s off-duty at a purely private matter, and that he is in the future supposed to be considering his actions in these type of circumstances and being directed to familiarize and re-familiarize himself with anti-harassment policy,” Halstead said.
He said it’s the union’s position Zynda “did nothing wrong and the letter was inappropriately issued to him.”
The fourth step in the grievance procedure of the union’s contract calls for the WERC to appoint an arbitrator from its staff to hear the matter and “make an ultimate and binding decision regarding the interpretation or application of a specific provision of the agreement.”