Appeal from the Circuit Court of Jackson County. No. 95-MR-40. Honorable E. Dan Kimmel, Judge, presiding.
As Corrected July 11, 1997.
The Honorable Justice Hopkins delivered the opinion of the court. Chapman, J., and Goldenhersh, J., concur.
The opinion of the court was delivered by: Hopkins
The Honorable Justice HOPKINS delivered the opinion of the court:
Kate Ehlers, plaintiff, appeals from an order of the Jackson County circuit court affirming an order of the Jackson County Sheriff's Merit Commission (Merit Commission), which terminated plaintiff's employment as a jail officer and sergeant with the Jackson County Sheriff's Department. In this administrative review case, we consider whether Ehlers was entitled to request union representation at an investigatory interview conducted by the Jackson County sheriff, William Kilquist, plaintiff's employer. We hold that, under the circumstances of this case, Ehlers had a right to request union representation at the meeting in question and that the Merit Commission acted arbitrarily by discharging Ehlers for asserting her right in this regard.
On January 7, 1995, Sheriff Kilquist suspended Ehlers without pay and filed a complaint with the Merit Commission, requesting a hearing on the following disciplinary charges against Ehlers:
"A) On or about Tuesday, January 3, 1995[,] not fully and/or truthfully complying with the order of her Lieutenant (Jacquot) to produce for the Complainant Sheriff a report as to how many times her husband was at the Jackson County Sheriff's Department, how long he had stayed, how many times she was outside the Jail and the amount of times she was out of the Jail while she was on duty on December 26, 1994[,] and working a duty tour at the Jackson County Jail.
B) On or about Thursday, January 5, 1995, giving a less than truthful and/or accurate typed report to the Complainant Sheriff regarding how many times her husband had been to the Jackson County Jail and the amount of time she was out of said Jail while she was on duty and at the said Jail complex on Monday, December 26, 1994, and further on said report writing the words 'I am making these statements under duress ' and further that the Respondent did deliver said January 5, 1995[,] document to the Complainant Sheriff while accompanied by on[-]duty Jackson County Jail Officer George Schaefer acting as a witness for Respondent as requested by Respondent.
C) On or about Thursday, January 5, 1995[,] at about 11:15 a.m. at or near the Complainant Sheriff's office and immediately after Respondent had delivered to the office of the Complainant Sheriff the report mentioned in (B) of this writing, Respondent did refuse to obey the verbal order to her by the Complainant Sheriff to stay and talk to the Complainant Sheriff about the subject matter mentioned in (A) and (B) of this writing and Respondent did further claim that she was being harassed and did further state that she would not talk to the Complainant Sheriff in the absence of the on[-]duty Jackson County Jail Officer George Schaefer." (Emphasis in original.)
On February 2, 1995, the Merit Commission conducted a hearing in which the following relevant evidence was presented: Ehlers testified that she was working the day shift on December 26, 1994. Her husband came to the jail in the afternoon, and they went outside to smoke cigarettes. Ehlers estimated that they were outside about 10 minutes. While outside, she was wearing her radio and it was turned on so that someone inside the jail could reach her if necessary. After the cigarette break, she came back in the jail and went back to work. Other jail officers testified that it was not unusual for jail officers to go outside the jail to smoke cigarettes while on duty.
On January 3, 1995, Sergeant Ehlers' immediate supervising officer, Lieutenant Earl Jacquot, told her that the sheriff wanted a written statement from her about when her husband was at the jail on December 26, how many times he was there, and how long he stayed. In response to Jacquot's request, Ehlers submitted the following statement to the sheriff:
"This statement is being made as per ordered by Sheriff Kilquist and as advised to me by Lt. Earl Jacquot.
On December 26, 1994, to the best of my knowledge and recollection, my husband, Curt Ehlers, came to the Jail one time during the afternoon hours."
Ehlers testified that the reason her first statement contained so little information was that she did not recall how long her husband had been at the jail on December 26. Ehlers testified that Jacquot asked her to rewrite the report to provide the additional details, but she told Jacquot that she did not remember. Jacquot told her she had ...