ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
STAFF SERGEANT RANDALL WILLIAM HANCOCK Appellant
-and-
ONTARIO PROVINCIAL POLICE
Respondent
DECISION
Panel: Karl R. Fuller, Member Raymond G. Leclair, Member
Hearing Date: June 2, 1995
Hearing Location: Toronto, Ontario
Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, Ontario M7A 2T3 Tel: 416-314-3004 Fax: 416-314-0198 Website: www.ocpc.ca
Presiding Members:
Karl R. Fuller, Member Raymond G. Leclair, Member
Appearances:
W. Michael Temple, Counsel for the Appellant Inspector Michael Shard, Counsel for the Respondent
Date of Hearing: June 2, 1995
- This is an appeal from the conviction for Neglect of Duty entered by Superintendent G.R. Taylor on June 19, 1993. The penalty of the loss of one day's pay was not appealed. The charge alleged the member neglected or omitted promptly and diligently to perform a duty contrary to Section 1(c)(i) of the Code of Conduct contained in Regulation 791 under the Police Services Act.
The Facts:
The Staff Sergeant is the Provincial Coordinator of the O.P.P. Underwater Search and Rescue Unit Program. As part of his duties he coordinated the 1992 "C" Division East Team re-qualification course at Sudbury on June 22 to 26 ,1992. The charge sheet alleges that he did not attend a training session to ensure that all members participated and successfully demonstrated the required skill needed to re-qualify and he did not advise his Director or the Superintendent for No. 13 District that the district divemaster for his area was unable to participate in the swimming, due to illness and had not re-qualified.
By an Agreed Statement of Facts, the parties agreed that in a telephone conversation with Superintendent Wilhelm on July 7, 1992, Staff Sergeant Hancock assured him that Constable Ansamaa was in the water, diving and performing the test, and he, Staff Sergeant Hancock qualified him and all the other divers by witnessing them perform from his position in the boat. On July 8, 1992, Staff Sergeant Hancock called Superintendent Wilhelm and advised him that, in fact, Constable Ansamaa was unable to dive due to a head cold, but he had attended the course and had helped out. Staff Sergeant Hancock was not present at the dive site on June 24, 1992. Prior to starting annual leave on July 6, 1992, Staff Sergeant Hancock did not advise Superintendent Wilhelm or Superintendent Laforge that divemaster Ansamaa had not re-qualified due to illness and that alternate arrangements would be made to have him re-qualify.
Staff Sergeant Hancock testified that he was on vacation and at the hospital (his wife's sister was terminally ill) when his pager was activated. He called in and spoke with Superintendent Wilhelm. During the conversation he advised that Constable Ansamaa had been in the water and re-qualified. He then testified that the first thing the next morning he called Superintendent Wilhelm to correct his statement. He explained that after the July 7, 1992 call, he recollected the course and remembered that in fact Ansamaa had advised him that he had a cold and did not dive. Staff Sergeant Hancock authorized that he complete the other requirements of the course and dive at a later date to fulfil the re-qualification requirements. He testified he apologized for the inconvenience.
Staff Sergeant Hancock testified that the divers must re-qualify within the calendar year. He testified to previous examples and produced a written memorandum relating to one such example. Other evidence was provided showing that re-qualifications were done yearly, at various times, when the time could be accommodated around operational exercises.
Staff Sergeant Hancock testified that he did not attend the diving exercises on June 24, 1992 because of other duties. He delegated his functions to Constable Ansamaa for the day. Constable Ansamaa and his abilities were well known to him and he had previously delegated his duties to him with the knowledge of his superior. In his testimony he recited Sections 132.1 and 132.4 of Part 1 of the Police Orders stating:
"The responsibility for effective management of an organizational unit rests solely with the employee in charge of such unit. In attaining objectives, the practice of delegating authority is a valuable management device and serves to foster organizational growth in the employee to whom authority is delegated. A manager may accept where it is otherwise specifically provided to delegate his or her authority in a particular matter or system. But, he or she retains the ultimate responsibility for the effective administration of such matter or system.
An O.P.P. manager shall on a continuous basis familiarize the subordinate employee who will undertake command in his or her absence with such information and knowledge of procedures, as will enable the subordinate to function effectively in a position undertaken."
The prosecutor directed Staff Sergeant Hancock to the Occupational Health and Safety Act and referred to the sections stating that "the diving supervisor shall be in direct control of the diving operation." and "Without limiting the generality of subsection 1, the diving instructor shall in number (c), ensure that the diver is competent to perform the work."
Staff Sergeant Hancock testified that he had previously delegated his duties on 14 separate occasions in the last six years, all involving diving duties, six times during re-qualifications courses and once during a qualification course for new recruits.
The force argued before the Superintendent that Staff Sergeant Hancock:
improperly delegated part of his duties that they allege he should have performed personally; and
did not report to his superior or the diver's (who did not re-qualify) superior that the diver had not re-qualified; and therefore neglected his duty.
No evidence was produced indicating a clear obligation to personally attend the re-qualification exercises or to immediately advise the superior in question. The prosecution argued that these matters are simply common sense or go without saying in view of the importance of the task, the high standards of the force and the high level of expertise of Staff Sergeant Hancock.
In his reasons, the Superintendent found him guilty of Neglect of Duty because of the importance of the re-qualification and the level of expertise of Staff Sergeant Hancock. He was represented by the prosecutor as a very good, dedicated police officer and the top knowledgable expert in the O.P.P. This was acknowledged as a minor, isolated incident.
Before us, Inspector Shard acknowledged the controversy regarding the period within which re-qualification was required (i.e. one year or a calendar year) and conceded that no obligation to advise would arise if the diver could re-qualify at another time and in view of the ambiguity.
We are not satisfied that there is clear and convincing evidence that Staff Sergeant Hancock could not delegate part of his duties regarding the re-qualification exercises. He did not do so lightly. He had other pressing duties to attend to. The prosecution failed to introduce evidence to show the re-qualification duties were more important. Staff Sergeant Hancock chose a person to replace him whom he knew to be well qualified. The written Police Orders clearly authorize the delegation of duties to subordinates as a good management tool. Staff Sergeant Hancock is said to be the most qualified O.P.P. officer in these matters and he was confident that Senior Constable Ansamaa had the necessary qualifications to perform these duties. Staff Sergeant Hancock acknowledged that he remained the responsible person for the re-qualifications. Inspector Shard argued that the high professional standards of the organization demanded the personal attendance of Staff Sergeant Hancock. We see no contradiction with these high standards and the fact that these duties were delegated to an officer who has been involved with the program for the same period of time as Staff Sergeant Hancock.
The Decision:
For the reasons stated above, we are not satisfied that there is clear and convincing evidence upon which Staff Sergeant Hancock could be found guilty and we set aside the conviction and penalty.
This prosecution appears to be used by O.P.P. management as a learning tool for its officer. This officer had 29 years experience, no discipline charges, 27 scuba-related commendations and there was no evidence of a previous indication by his superior or any audit recommendation that he was not performing according to standards, expectations or perceived common sense. We hope that our reversal of the earlier findings will somewhat compensate this officer for what appears to us without other logical explanation to be an unwarranted use of the charge of Neglect of Duty.
DATED THIS 11th DAY OF SEPTEMBER, 1995.
Karl R. Fuller, Member
Raymond G. Leclair, Member