By Kevin Boneske
ASHWAUBENON – An arbitration hearing was held Wednesday, Jan. 22, at the village hall to consider a grievance filed on behalf of an Ashwaubenon public safety officer, who objected to having a letter of direction placed in his personnel file after being seen off-duty wearing a thong while golfing.
Officer Jamie Zynda, who was one of seven people to testify, had been directed in December 2018 to review the village’s anti-harassment policy and dress code after participating in the Fraternal Order of Police (FOP) golf outing Aug. 3, 2018, at the Brown County Golf Course.
The hearing before Wisconsin Employment Relations Commission staff attorney Raleigh Jones was sought by the Ashwaubenon Public Safety Officers’ Association (APSOA) after the village board decided last April the matter wasn’t grievable and, if found grievable, it would deny it.
The final step in the grievance procedure 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.”
After receiving briefs from both the village and the union which are due March 20, Jones will issue a ruling on the grievance that will be publicly released.
Two issues to be ruled on will be whether the letter of direction is non-disciplinary in nature, thereby making it not subject to arbitration under state law, and whether the village violated the collective bargaining agreement with the union, including any policy or practice related to conditions of employment, and/or deviated from those policies or practices, by misinterpreting or misapplying those employment conditions with the letter.
Zynda was with three Ashwaubenon Public Safety Department lieutenants in a golfing foursome, whose participation in the outing was investigated when the village retained an outside attorney, Geoffrey Lacy.
A report of the investigation by Lacy stated 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 stated it is unknown how many people outside the golfing foursome witnessed the thong, however, “photographs and video were taken of him teeing off while wearing a thong and no other pants.”
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 and not expressly identifying the golfers as an Ashwaubenon Public Safety team – “is nonetheless reasonably treated as an extension of the workplace.”
Lacy recommended Zynda receive 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.
Village Manager Allison Swanson, who testified at the hearing, said she sought the investigation after finding out images of the foursome were posted online.
Aaron Halstead, an attorney from the Hawks Quindel law firm representing the union, said Zynda participated in the golf outing while off-duty and not on work premises, with the FOP being a voluntary organization not affiliated with the village.
Halstead argued the village misapplied and misinterpreted the dress code and anti-harassment policy, as well as violated and deviated from practice by keeping the letter in Zynda’s personnel file, though he did nothing at the golf outing to violate any village policy.
“(Zynda) was further advised that in the future, if his actions or dress tended to harm the reputation, image or credibility of the department, he could be subject to discipline,” he said. “Now, since that time, the village has taken the position that this letter is not disciplinary, and that it will not be considered for promotional opportunities, but the village refuses to remove it from officer Zynda’s file.”
Village Attorney Tony Wachewicz argued the golf outing was an “extension of the workplace” in which the village’s policies would apply.
“Additionally, it’s certainly the case that whether conduct is on- or off-duty – there’s certainly policies that apply to off-duty conduct as well – certainly the environment in which we all exist in and live in nowadays involves the scrutiny of law enforcement officers, public safety officers, whether right or wrong, but involves very much public scrutiny and criticism and observation of them, whether they’re in an on- or off-duty context,” he said.
Wachewicz said the letters issued to Zynda and others involved in the outing were “a reminder to employees and what policies may apply in such situations, including extension of the workplace.”
He also argued the matter wasn’t a valid grievance because the letter was non-disciplinary in nature.
Had it been disciplinary, Wachewicz said Zynda would not have been allowed after the letter was issued to participate in a promotional process for lieutenant, in which officers who have been disciplined within the prior 12 months cannot be involved.
‘Unusual or outlandish?’
During Zynda’s testimony, Halstead asked whether he has a “history or reputation of dressing in unusual or outlandish ways.”
“I wear what I feel like wearing,” Zynda said. “I never wear anything that anyone couldn’t just wear out on the street in front of this (village hall) building.”
When further asked about ever wearing clothing Halstead would characterize as “unusual or outlandish,” Zynda said he has done so for charitable purposes.
“I attended a fundraiser for the American Red Cross, which happened to be a drag show,” Zynda said. “So, I took part and also went to that event in drag.”
Zynda said he wore a black dress and red high heel boots when the event took place a few years ago while he was an officer in Ashwaubenon.
After that event, he said an image of him in drag appeared in a slide show that was part of a Christmas party attended by department employees and some retirees, but no one contacted him about having concerns.
When asked about the FOP golf outing, which was also a fundraiser, Zynda said he wore shorts and a Hawaiian shirt when he took off his shorts on the last hole he golfed and was wearing thong-style underwear.
“I teed off without the shorts,” he said.
Zynda said the reaction he received from people around him “was mostly laughter.”
Zynda said he put his shorts back on to cover the thong after teeing off.
He said he has never been informed by any village or department representative what section or sections of the department’s dress code he allegedly violated at the golf outing.
Zynda said he objected to having the letter placed in his personnel file.
“A letter of direction means I’m being directed to do something,” he said. “When I’m directed to do something, that’s an order.”
‘Water cooler talk’
Swanson said her responsibilities include human resources matters which involve the public safety department.
She said she became aware of the Ashwaubenon officers’ behavior at the golf outing on Facebook and from other village employees in what she characterized as “water cooler talk.”
Swanson, who noted her husband, Kevin Buckley, is an Ashwaubenon public safety officer, said she had concerns at that time about then-chief Eric Dunning not consistently applying department policies.
In the situation involving the golf outing, Swanson said she believed Dunning “felt that there was tension between him and I, and so therefore I thought it best to do an outside investigation, so that it was not perceived that I was somehow tainted and just out to get him.”
Swanson said she was concerned about possible liability for the village, and supervisors as a whole in the public safety department thought what happened at the golf outing was “okay behavior.”
“Any type of harassment can happen, and if that supervisor sees it, they must take action to stop it,” she said. “We can’t wait for someone to complain and work all the way through that when we could nip that in the bud and be proactive, and I think that’s what’s required under the federal law, and there appears to be a blatant disregard of that, at least within that department.”
Swanson said Zynda and each of the other Ashwaubenon officers involved in the outing were given the letters to direct them to review the village policy, so that they would know “future actions may be in violation and discipline may be taken in the future.”
Though she found Zynda’s wearing of a thong at the golf outing wasn’t appropriate, Swanson said “it would be difficult for us to show that it was a violation of the policy.”
‘Proud of your boys’
Dunning, who retired last June from the public safety department after 12 years as chief and 25 years of service, said he became aware of the behavior of the Ashwaubenon officers at the golf outing weeks later, around the time of a pre-game department briefing to prepare for the Green Bay Packers playing at Lambeau Field, when Captain Jody Crocker told him, “You must be proud of your boys.”
“He produced a picture, and showed me, of Jamie (Zynda) along with the three lieutenants,” Dunning said.
Dunning said no action was taken regarding the officers’ participation in the golf outing until an outside investigation sought by village administration was conducted by Lacy.
Though the letter issued to Zynda following the thong investigation was on Dunning’s letterhead, he said the letter was drafted by village administration and not him, though he agreed with the issuing of the letter.
“Either (the letter) could come from on behalf of my office with my letterhead on it or from village administration,” he said. “And at that time, I took it upon myself. It’s my department, and it’s going to come from my office.”
Dunning said that was the only time in his 12 years as chief he issued a letter he didn’t draft to a non-supervisor.