Arbitrator orders county to rehire and give back pay to firefighter involved in overtime scandal

By Joe Schoenmann

Published Tuesday, May 15, 2012 | 10:53 a.m.

Updated Tuesday, May 15, 2012 | 11:51 a.m.

A Clark County firefighter who was fired a year ago for misusing sick-leave privileges will get his job back.

Arbitrator Michael Rappaport ordered Clark County to rehire Donald Munn in his arbitration order, even though he concluded Munn violated a policy banning the use of county computers to tell a colleague how to "call in sick on days that he had previously scheduled for vacation."

That violation will only result in a written reprimand.

Rappaport said the county "did not have just cause" under the union's contract to terminate Munn. He also ordered that Munn be reinstated to his former position and repaid any losses in earnings or benefits that he would have received had he not been terminated.

Rappaport, from Sherman Oaks, Calif., said the county was "not able to meet its burden of clearly and convincingly proving that Munn abused his sick leave."

The county must also pay the arbitrator's fees and expenses.

Munn learned of the ruling from the Sun Tuesday morning.

"I'm thrilled," he said. "It means I'm going back to work. I wasn't ready to retire."

Munn said that he never violated any rules or terms of the union contract. "I did exactly what I was supposed to do. The rules are so specific that if you have a family member who is sick, you call in and take care of him."

County Commissioner Steve Sisolak, who led the charge against sick-leave abuses two years ago, said the decision is “a slap in the face to every taxpayer and citizen of Clark County.”

The arbitrator, he added, “is totally out of touch. Maybe that is why California has the problems that they do.”

The arbitrator also talked about Munn’s adopted son, who is now 21 and was born with fetal alcohol syndrome and “in need of almost constant care and who must be monitored carefully.”

Because of that condition, Rappaport was "persuaded that the fluid and unpredictable situation involving Munn's son means it was all the more difficult for the county to be able to provide convincing proof...that on days which the county regarded Munn's use of sick leave to be questionable, they were, in fact, questionable."

Munn said he believes he will be welcomed back to the fold by fellow firefighters. He wondered, though, what would happen to the county attorneys who advised county commissioners that they would be in the right to fire him a year ago.

"When your legal guy says you're bullet proof, you can fire someone, then the guy gets his job back and compensation, are you going to can the lawyer for that?" he asked.

In 2010, Munn earned $85,556 in base pay, plus 2,291 in overtime/callback pay, plus $24,421 in “other pay,” and $52,590 in benefits, for a total of $164,859.

He is one of two firefighters who fought the termination through arbitration. The other was Battalion Chief Rene Dillingham. The Sun could not reach her or her attorney.

In an email to county commissioners Tuesday morning, Assistant County Manager Ed Finger called the arbitrator’s decision “extremely disappointing.”

“County management believes that the Fire Chief acted in a way consistent with our responsibility to maintain a workplace characterized by honesty and accountability,” he wrote. “However, this ruling demonstrates our limitations in making such decisions.”

He noted that the county changed sick leave processing in a new union contract approved last year, which “made disciplinary procedures stronger.”

Rappaport’s decision almost contradicts another arbitrator’s decision from January 2011. At the time, Norman Brand sided with the county against the union in a contract dispute. In his decision, Brand pointed to firefighter emails as evidence of how they were abusing sick leave.

“Some employees use sick leave as vacation, scheduling themselves to be “sick” months in advance,” Brand wrote. “This improper use of sick leave is evident from emails the Department recovered. Second, it appears some firefighters may deliberately call in late to turn the overtime opportunity into a callback/overtime opportunity.”

He added that “some firefighters use sick leave, in combination with overtime/callback, to significantly increase their pay, and potentially their pensions.”

Munn used 333 hours of sick time in 2009. From an email in June 2010, Munn answered this question from another co-worker: “How does one get the entire summer of vacation?”

Munn replied: “Between sick & vac it will seem like most of the summer.”

Sisolak said of that email that “if that did not show an abuse, the arbitrator didn't read it.”