By Steve Rhodes
What in the world is up with arbitrator Edwin H. Benn?
That’s what city inspector general Joe Ferguson – and much of the (small) portion of Chicago that pays attention to these things – wants to know.
“Chicago’s internal watchdog on Monday defended his recommendation to fire dozens of firefighters who padded mileage reports and called an arbitrator’s ruling to soften penalties in the case ‘patent nonsense,'” the Tribune reports.
“Last year, Inspector General Joseph Ferguson recommended firing 54 firefighters in the Fire Prevention Bureau that his office determined had falsified their mileage reimbursements to the tune of $100,000 in 2009. Then-fire Commissioner Robert Hoff decided instead to issue lengthy unpaid suspensions to most firefighters but fired four of them.
“The arbitrator, Edwin Benn, reversed the firings last week, ruling that the four instead should be suspended without pay for 40 days. He also ruled that most of the other firefighters have their 30- to 60-day suspensions reduced to 20 to 40 days.
“Benn found that while firefighters and supervisors violated city rules, they engaged in conduct that had been ‘almost a work rule,’ condoned within the department for decades.”
In other words, Benn decided to let the firefighters off easy because the corruption they engaged in is so widespread that they shouldn’t be held accountable for their misdeeds. What a novel legal theory.
On Monday, Ferguson fired back in fine form, releasing this statement:
“Last year, after a lengthy investigation, my office determined that firefighters assigned to the Fire Prevention Bureau routinely lied on their mileage reimbursement requests in order to defraud the City out of money. The IGO recommend that most of these employees be terminated. The Chicago Fire Department instead imposed lengthy unpaid suspensions.
“Last week an Arbitrator reduced those suspensions, arguing that because the scheme was so widespread it amounted to a de facto work rule tacitly condoned by the Bureau’s supervisors.
“The Arbitrator’s decision expressly found the IGO’s investigation to be thorough. We established widespread, long-running theft and falsification by scores of sworn personnel of the Chicago Fire Department. These findings notwithstanding, the Arbitrator’s decision also includes a lengthy and gratuitous criticism of the IGO. The Arbitrator argued that our recommendation to terminate the employees was ‘draconian . . . Like the Queen of Hearts in Lewis Carroll’s Alice in Wonderland, whose only response to any perceived misconduct was the overly cruel mandate, ‘Off with their heads,’ in the end, those bellicose commandments which are not followed ultimately make that individual a powerless figure who is not to be taken seriously[.]’
“City residents struggling to understand the Arbitrator’s opinion may be reminded of another quote from Alice in Wonderland: ‘It would be nice if something made sense for a change.’ I can sympathize with that sentiment. The idea that stealing, fraudulent falsification of official records – and lying – is acceptable because everyone else is doing it is patent nonsense. Any child knows better. These firefighters did not engage in conduct that unknowingly brought them in technical violation of some obscure and misunderstood City rule. Rather, they admitted to routinely and systematically lying in order to steal money from the City – and, ultimately, from Chicago taxpayers.
“While that certainly violates a number of City rules, that conduct is also criminal, inherently and obviously wrong. It cannot be excused just because supervisors, as equally ‘culturally challenged’ as their charges, found it acceptable.
“And let’s be clear: the supervisors did not even tell these firefighters their conduct was acceptable – they told them that they would not get caught if they filled out their paperwork in a specific manner. Unfortunately, if not for the dedicated work of my staff, that was probably true.
“The Chicago Fire Department has a long and proud history of service to our City. However, bravery in service to the public does not put them above the law, or excuse them from their moral and fiduciary obligation to the people of this City. Just as I would fire an IGO employee for stealing or lying, I would again recommend the Fire Department terminate firefighters who steal from the City they are sworn to protect. The certifications and testimony of Fire Prevention Bureau inspectors are relied upon by law enforcement, and their work is used by numerous regulatory bodies to ensure the safety of millions. When government allows those who steal taxpayer money to keep their taxpayer-funded jobs, we do grievous damage to the public trust, and especially the trust placed in the honest, dedicated employees of the CFD. The Arbitrator argued that our termination recommendation ‘demean[s] and denigrate[s]’ the Fire Department. He has it exactly backwards – it is the reprehensible conduct of these Fire Prevention Bureau employees that demeans and denigrates the work and sacrifice of their fellow firefighters.
“In the end, if the Arbitrator thinks I owe some sort of apology for recommending that employees who are proven to be liars and thieves be terminated, let me dispel that delusion – no apology is necessary and none will be forthcoming. I would do it again tomorrow – anything less and I would stand rightfully accused of failing my duty as Inspector General.
“And if the Arbitrator, or anyone else, thinks I am going to back down from investigating other City employees who lie and steal, or from recommending their termination if the evidence supports it, let me be crystal clear – I will not. Chicagoans can be assured that we will continue to work tirelessly to protect their interests and resources from City employees who put their own selfish desires ahead of the duty they owe the City and its residents.
At its core, the IGO operates from a very simple belief: City employees who lie, cheat or steal in the performance of their official duties have forfeited the honor to be City employees and should be terminated. Nothing that happened last week changes our commitment to that fundamental principle, and I am confident that our documented track record in upholding that principle ensures we will continue to be taken very seriously by those who would believe and act otherwise.”
Amen.
–
From Benn’s ruling:
“The Department and the City disagreed with the IGO’s recommendation that Grievants should all be discharged and instead issued discipline in individual cases of suspension (30, 45 and 60 days) and discharge.”
The City is Mayor Rahm Emanuel.
[“Mayor Rahm Emanuel does not plan to appeal an arbitrator’s order to rehire four firefighters who were fired for padding mileage reports, but he continued his tough talk on employee misconduct,” the Tribune reported last week.
[“‘I give no quarter to anyone who does anything wrong or violates the public trust,’ Emanuel said at an unrelated news conference Friday. ‘When it comes to a culture and atmosphere, we condone no violation of the public trust. None. Zero tolerance.'”
[Except in the very case he was asked about. Talk about Alice in Wonderland.]
*
“I find that the City has shown that Grievants engaged in the charged misconduct. There is no real dispute that Grievants knowingly submitted inaccurate mileage reimbursement reports and obtained compensation for mileage expenses (ranging, in some cases, into the thousands of dollars) that they did not actually incur. Such conduct clearly violates reasonable expectations of employees in the workplace.
“Further, such conduct clearly violates the City’s Personnel Rules and the Department’s rules and orders. As the IGO correctly concluded after his detailed investigation, the evidence shows that Grievants ‘ . . . routinely falsified their reimbursement claims by systematically vastly over-stating the number of miles they drove in their personal vehicles when performing inspections and other FPB-related business.’
“The Union’s arguments that Grievants’ conduct was consistent with a decades-long practice which was condoned – indeed, encouraged (as well as engaged in) – by their supervisors as found by the IGO, do not go to whether Grievants engaged in misconduct, but go to the question of whether the actions taken against them were appropriate.”
*
“I find that even with the City’s disagreement with the IGO’s recommendation for discharge of all Grievants, the City has not shown that the actions taken against Grievants were appropriate.
“First, the purpose of discipline is to send a corrective message to employees who engage in misconduct that they must conform their conduct to their employer’s rules and reasonable expectations in the workplace. Therefore, progressive discipline is typically used to accomplish that message-sending goal.”
*
“Given what the IGO found in this case – the pervasive supervisory condonation and encouragement of the conduct which elevated the long-standing practice concerning mileage reimbursements in the FPB almost to the status of a work rule, as well as the long and often unblemished service of these employees – anyone with any labor relations experience can only wince when reading the IGO’s recommendations that all Grievants should be discharged. Whether intended or not, the IGO’s draconian disciplinary recommendations in this case demean and denigrate the Department and all of its members from the highest supervisors to the lowest ranks.”
*
“By ignoring the IGO’s own findings of the decades-long condonation and encouragement by supervisory personnel of the mileage reimbursement practice, with the IGO’s draconian disciplinary recommendations for mass discharge of all of the in- volved FPB employees, then, like the Queen of Hearts in Lewis Carroll’s Alice’s Adventures in Wonderland whose only response to any perceived misconduct was the overly cruel mandate of ‘Off with their heads!’, in the end, those bellicose commandments which are not followed ultimately make that individual a powerless figure who is not to be taken seriously.
“In Chapter IX of Alice’s Adventures in Wonderland (The Mock Turtle’s Story), the Queen of Hearts walks away from Alice and the Gryphon stating that ‘I must go back and see after some executions I have ordered.’ Then, after the Queen departs, the Gryphon explains the Queen’s lack of power to Alice:
“‘The Gryphon sat up and rubbed its eyes: then it watched the Queen till she was out of sight: then it chuckled. What fun! said the Gryphon, half to itself, half to Alice.
“‘What is the fun? said Alice.
“‘Why, she, said the Gryphon. It’s all her fancy, that: they never executes nobody, you know.’
“The point here is that not only do the IGO’s draconian recommendations of discharge for all Grievants demean and denigrate the Department and all its members as a whole, the IGO’s recommendations – which ignore the extraordinary mitigating factors in this case of condonation and supervisory encouragement of the conduct – also demean and denigrate the IGO as those recommendations exhibit an utter lack of knowledge of basic labor relations principles and the core purpose of discipline, which is that discipline is meant to correct and not punish.
“Given the extraordinary mitigating factors of the level of supervisory condonation and encouragement of the long-standing mileage reimbursement practice presented in this case, the IGO’s recommendations of ‘Off with their heads’ were borderline ludicrous and may well make the IGO – like the Queen of Hearts – into a powerless entity which is not to be taken seriously.”
–
Or is Edwin Benn the one not to be taken seriously? To wit:
* “A Chicago Transit Authority mechanic, convicted of theft in an overtime pay scam in 1985, was ordered returned to his $14.28-an-hour job by an arbitrator and awarded about $70,000 in back pay, CTA officials said Monday,” the Tribune reported in 1988. Benn was that arbitrator.
* “In a blow to the Daley administration’s efforts to deal with the volatile issue of race in the city’s Fire Department, an arbitrator on Wednesday tossed out the punishments against 28 Chicago firefighters who had been disciplined for their role in a raucous 1990 firehouse party,” the Tribune reported in 1998.
“The decision, if it survives an appeal by the city, would reverse what had been the biggest bloodletting at the department in recent memory – brought on by public outrage at a videotape showing firefighters making racial slurs and drinking during the party.
“The arbitrator ruled that seven dismissed firefighters should be reinstated and that assorted suspensions of 21 others were invalid.
“Edwin Benn, the independent arbitrator, ruled that the city had waited too long to take the disciplinary action – 6 1/2 months after Edward F. Altman, the former head of the department’s internal affairs division, first learned of the videotape in May 1997 . . .
“‘He said that we could not discipline them because we had not done it in a timely manner in that Ed Altman had had the videotape for several months before anything was done,’ said John Camper, a spokesman for Mayor Richard M. Daley. ‘We don’t agree with him. The corporation counsel and the mayor only found out about it after it appeared on TV (months after Altman learned of the videotape).'”
The Illinois Appellate Court overruled Benn two years later.
* Benn’s employment history:
“Partner in the firm of Asher, Pavalon, Gittler, and Greenfield, Ltd., Chicago, Illinois (employed 1978 – 1985). Duties included general representation of labor organizations. Clients in- cluded various local unions of the Fraternal Order of Police, International Brotherhood of Teamsters, Service Employees International Union, International Brotherhood of Electrical Workers, United Food and Commercial Workers, United Union of Roofers, Glaziers, Bricklayers, Sprinklerfitters, Cement Lime & Gypsum Workers, United Rubber Workers, National Association of Letter Carriers, Railroad Yardmasters of America and the American Federation of Musicians along with various related benefit funds.”
The irony: Benn is doing labor a disservice – demeaning and denigrating it, you might say – by defending inexcusable behavior not just in any workplace but the taxpayer-funded workplace. It’s almost like Through The Looking-Glass.
–
Comments welcome.
Posted on June 5, 2012