C-036 - Conduct Authority Decision

Upon completing his activity, the Appellant called the District Operations Communication Centre (OCC) to inquire as to whether there was a traffic operation in the area and was provided with the location of some units. Later that evening a 911 call was placed by a private citizen, concerned that the driver of the Appellant's vehicle was intoxicated as he felt that the vehicle was being driven erratically.

Police attended at the Appellant's residence. While they believed he was displaying signs of intoxication, as there was no admission of consumption and considerable time had passed since he had arrived home, they decided to conclude their investigation. After police left the Appellant's residence he again called the OCC, this time to seek information about their attendance.

As the following day was a holiday, the Appellant returned to the office on the next business day. Shortly after his arrival, the Appellant's supervisor asked to speak to the Appellant about the incidents following his activity. During their meeting the Appellant told his supervisor that he had nothing to drink at the activity.

A Code of Conduct investigation was initiated alleging five contraventions of the Code of Conduct.

Following a conduct meeting, the Respondent issued a written decision wherein he concluded that the Appellant had made inappropriate inquiries of the OCC, provided inaccurate information to a supervisor and failed to report being investigated to a supervisor, contrary to sections 3.2, 8.1 and 8.2 of the Code of Conduct, respectively. The other two allegations were found to be unestablished on a balance of probabilities.

The Respondent determined that the Appellant made inappropriate inquiries of the OCC largely for self-serving reasons pertaining to whether he could have a drink before driving. The Respondent also determined that the Appellant provided inaccurate information to his supervisor by telling her during their meeting that he had nothing to drink at the activity, which the Appellant later admitted was untrue. The Respondent further found that the Appellant should have contacted his supervisor before she requested to meet with him to inform her that he was under investigation after members attended at his residence.

The Respondent imposed conduct measures which consisted of the forfeiture of 20 hours of pay, 20 hours of annual leave, a reassignment to another position not involving a relocation or demotion, a reprimand and the requirement to apologize OCC personnel in writing. The Appellant tendered an appeal, followed by a very lengthy submission in which he expressed numerous opinions and made a wide range of arguments.

The ERC made findings in relation to multiple arguments advanced by the Appellant for varying reasons reflective of applicable jurisprudence, but two arguments in particular generated the most attention. First, in his decision, the Respondent indicated that the Appellant had to inform his supervisor "immediately" that he was under investigation, while the language in section 8.2 of the Code of Conduct states that notice is to be provided "as soon as feasible". Second, the Appellant alleged that the decision was clearly unreasonable because no statement was taken from the Appellant's supervisor with respect to two of the Allegations deemed established. The ERC found that despite the Respondent's use of the word "immediately" instead of "as soon as feasible", it is clear from his reasoning that he was not concerned by the lack of the immediacy with which the Appellant notified his supervisor that he was under investigation, but rather by the fact that the Appellant did not do so at any point within the 35 hours between when the police left his residence and his supervisor confronted him about the incident, despite having had the means to do so. With respect to the omission to take a statement from the Appellant's supervisor, the ERC found that while this omission was a serious investigational oversight, the error was not determinative to the decision since the Appellant acknowledged the underlying facts that led to the findings on the allegations in question.

The ERC recommended that the appeal be dismissed.

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

On September 6, 2016, the Appellant participated in an activity while off-duty. Prior to leaving the activity's social function the Appellant contacted RCMP telecoms (OCC), identified himself by his rank, and asked if there was a traffic check stop in his area. The RCMP subsequently received a complaint that the Appellant's vehicle was driving in an erratic manner. RCMP officers attended the Appellant's residence, but took no further action – citing a loss of continuity (between when driving was observed and when they saw the Appellant) to explain why no charges were pursued.

After the investigators left his residence the Appellant contacted the OCC. The Appellant again identified himself by his rank and asked a telecom operator questions about the erratic driving complaint.

When the Appellant returned to work he discussed this incident with a co-worker who then checked the file for the investigation and advised the Appellant that it had been concluded.

Despite making inquiries with the OCC, the Appellant made no effort to contact his supervisor to advise her of the incident until she called him into her office (36 hours after the incident) and asked him about it. During his conversation with his supervisor he claimed that he had not consumed alcohol at the activity, but the Appellant has subsequently acknowledged that he had a beer during a meal prior to leaving the activity.

After an investigation and a conduct meeting the Respondent found that the Appellant had: inappropriately used his position to make inquiries with the OCC contrary to section 3.2 of the Code of Conduct; provided false, misleading or inaccurate information to his supervisor contrary to section 8.1 of the Code of Conduct; and failed to report the investigation to his supervisor as required by section 8.2 of the Code of Conduct. As conduct measures the Appellant received a reprimand and was required to: write letters of apology to three OCC personnel, forfeit 20 hours of pay, forfeit 20 hours of annual leave, and be reassigned to another position without being relocated or demoted. The Appellant appealed both the findings and the conduct measures.

The ERC recommended that the appeal be dismissed. The Adjudicator agreed with most of the ERC findings (in some cases for different reasons) and accepted most of the ERC recommendations. The appeal on the findings was dismissed, however, the Adjudicator allowed the appeal in relation to the conduct measures due to a procedural fairness issue. After reviewing the record the Adjudicator imposed the same conduct measures as the Respondent based on his own review of the record.