Conduct (Discipline) Appeals - C-022

In August of 2014, the Appellant became the subject of an investigation into an unrelated allegation that he had breached the Code of Conduct (Original Allegation). Shortly after being advised of the Original Allegation, the Appellant began a period of medical leave, during which he took residence in a location outside his detachment area without first informing his commander. The Appellant also, while on medical leave, accessed RCMP information technology (IT) resources in order to gather information to defend himself against the Original Allegation. A further investigation into the Appellant’s actions while on medical leave led to the discovery of written communications which had taken place between the Appellant and a police officer from another Force (other officer) earlier in 2014. In those communications, the Appellant had discussed aspects of a case he was investigating despite having been directed by his supervisor not to reach out to anyone outside the Force with respect to the case. A Conduct Meeting was convened in which five allegations were brought against the Appellant in relation to his actions while on medical leave and in relation to his communications with the other officer. The Respondent found all five allegations to be established and he imposed a reprimand, a financial penalty of 56 hours of pay and a forfeiture of 24 hours of annual leave.

The Appellant appealed the conduct measures imposed as well as the Respondent’s findings with respect to three allegations: Allegation #1 which stipulated that by leaving his detachment area without permission while on medical leave, the Appellant had breached section 4.2 of the Code of Conduct; Allegation #2 which asserted that the Appellant had, while on medical leave, accessed RCMP IT resources to obtain unauthorized information contrary to section 4.6 of the Code of Conduct, and; Allegation #3 which alleged that the Appellant had failed to follow his supervisor’s direction by continuing to communicate with the other officer regarding a case contrary to section 3.3 of the Code of Conduct. The Appellant did not appeal the Respondent’s findings that the other two allegations (Allegations #4 and #5) had been established.

The ERC found that the Respondent’s failure to provide meaningful reasons regarding his disposition of the three allegations under appeal rendered his decision clearly unreasonable. It therefore addressed the findings that the Respondent should have made in regards to each. The ERC first addressed Allegation #1 and section 4.2 of the Code of Conduct, which requires members to be diligent in the performance of their duties and the carrying out of their responsibilities. The ERC found that the allegation had not been established. While the Appellant had failed to obtain his commander’s approval to leave his detachment area for more than 24 hours as required by policy, his failure in that regard was not accompanied by either an element of willfulness or a degree of neglect which would cross the threshold from a performance issue into a conduct matter.

The ERC found, however, that the record supported finding that Allegations #2 and #3 had been established. Allegation #2 alleged a breach of section 4.6 of the Code of Conduct, which requires members to use government-issued equipment and property only for authorized purposes. In the ERC’s view, the Appellant’s access to Force IT resources to defend himself against the Original Allegation, while on medical leave and therefore unfit for duty at the time, was not authorized as applicable policy required that such use be for an official police administrative, operational or duty-related purpose. Allegation #3 alleged a breach of section 3.3 of the Code of Conduct which requires members to carry out lawful orders and direction. The record supported a finding that the Appellant, in communicating with the other officer, had failed to comply with his supervisor’s direction not to communicate with anyone outside the Force regarding a specific case.

The ERC found no reason to vary the conduct measures imposed. In the absence of submissions from the Appellant on the issue, it was not clear how the conduct measures should be varied even if Allegation #1 was not established. Considering only Allegations #4 and #5, found by the Respondent to be established and which had not been appealed, the conduct measures in place did not present an obvious departure from an established pattern of discipline. The ERC’s finding that Allegations #2 and #3 were established further called into question varying the conduct measures imposed.

The ERC recommended that the Commissioner of the RCMP find that Allegation #1 is not established and that Allegations #2 and #3 are established. The ERC further recommended that the Commissioner of the RCMP dismiss the appeal in respect of conduct measures and confirm the conduct measures imposed by the Respondent.

The Commissioner’s decision, as summarized by her office, is as follows:

The Appellant was a constable in a small municipality in a contract policing division. A Code of Conduct investigation was initiated into an allegation that the Appellant failed to properly respond to a domestic violence complaint (Original Allegation). Shortly after he learned that the Original Allegation was being investigated, the Appellant notified his commander that he was off duty sick (ODS).

Five subsequent Code of Conduct allegations came to light after the Appellant became ODS. Specifically, it was alleged that the Appellant: moved away from his detachment area while ODS without seeking approval from his Commander (Allegation 1); improperly accessed police databases while ODS to defend himself against the Original Allegation (Allegation 2); failed to follow his supervisor’s direction in relation to a missing person file (Allegation 3); inappropriately sent file materials to an [other police service] (OPS) officer for a non-duty purpose (Allegation 4); and made derogatory comments about employees from the Appellant’s detachment to the OPS officer (Allegation 5). During the investigation the Appellant’s security status was suspended and the Appellant was suspended with pay.

Prior to the Conduct Meeting, the Appellant’s suspension was lifted and his security status was reinstated subject to him meeting several conditions. The Appellant asked for disclosure of reports relating to both of these decisions both prior to the Conduct Meeting and during the Appeal process; the Respondent did not reply to the Appellant’s request for disclosure prior to the Conduct Meeting. The Respondent found that all five Allegations were established and imposed global conduct measures of a reprimand, a forfeiture of 56 hours of pay, and a forfeiture of 24 hours of annual leave. The Appellant accepted the Respondent’s decision in relation to Allegations 4 and 5, but the Appellant appealed the Respondent’s findings for Allegations 1, 2, and 3 and the conduct measures which he imposed.

The RCMP External Review Committee (ERC) recommends that the Appeal of the findings for Allegations 1, 2, and 3 be allowed because it was procedurally unfair for the Respondent to make these findings without providing meaningful reasons for that decision. In reviewing the record to determine what decision the Respondent should have rendered, the ERC recommended that Allegations 2 and 3 be established, but not Allegation 1. The Conduct Appeal Adjudicator agrees with these recommendations.

The ERC considered the Appellant’s request for additional disclosure both as it related to a request for new evidence at the Appeal stage and from the perspective of how the Respondent should have addressed it in the first instance. The Conduct Appeal Adjudicator agreed with the ERC finding that the Appellant had failed to provide adequate reasons to justify his request for the documents during the investigation stage and therefore was not entitled to these documents.

The ERC found that the Appellant had failed to provide any persuasive argument on why the conduct measures were inappropriate. The ERC also noted that the conduct measures were within the range of measures for Allegations 4 and 5 alone (without even considering Allegations 2 and 3) and on that basis recommended that the Appeal of the conduct measures be dismissed. The Conduct Appeal Adjudicator agreed with the ERC recommendation, dismissed the Appeal on conduct measures, and confirmed the conduct measures imposed by the Respondent.