WELLAND, Ont. — An Ontario Transportation Enforcement Officer (TEO) who pleaded guilty to two counts of committing an indecent act after exposing himself to young women, and who has admitted to acting out in anger towards women, has been allowed to resume his job as an enforcement officer.

Jeffrey Richard, hired as an MTO enforcement officer at the Niagara Region’s Vineland station in 2006, has won a grievance against the Ministry of Transportation, which could see him return to his duties as a truck inspector. This despite numerous charges against him during his time as a TEO, stemming from incidences in which he masturbated in public on an outdoor trail near a girls’ school in the Welland, Ont. area.

Richard pled guilty to two of the charges and received a conditional discharge and three years’ probation. He also admitted to having committed the same lewd acts 10 other times, but no further charges were laid. The charges against Richard are significant, because as a TEO, he is a peace officer under the Criminal Code, responsible for enforcing several laws, including the Highway Traffic Act.

“A TEO is called to testify in court as a Crown witness or as an expert witness and must be held to a higher standard than other employees; they must be seen as credible,” arbitrator Loretta Mikus acknowledged in her decision. “They make the decision to take a vehicle out of service, lay a charge, issue a warning or impose a fine. They have significant independence and are required to perform their duties with integrity and good judgment.”

Richard, represented by the Ontario Public Service Employees Union (OPSEU), argued during an Ontario Grievances Settlement Board hearing, that he should be able to resume his position as a TEO, since he was not on-duty or wearing his uniform when he committed the crimes in question (in fact, he was naked when he committed the acts). He also contended that “there was no conviction on his record since a conditional discharge is considered to be an administrative pardon,” according to the decision rendered by arbitrator Mikus.

In her ruling, Mikus noted that the facts in the case were not in dispute. Specifically, that Richard “was observed exposing himself and masturbating on the trails of the Canal Trail system in Welland, Ont. and was arrested and charged with four counts of performing an indecent act. He pled guilty to two counts, was given a conditional discharge and placed on probation for three years.”

The employer (MTO) contended that even though the acts were committed while Richard was off-duty, “the nature of the offence and the victims he targeted, coupled with (his) lack of remorse and refusal to accept responsibility for his conduct, satisfy the criteria of the Millhaven case, which allows an employer to consider this off-duty conduct as cause for discipline.”

OPSEU, on the other hand, countered that: “The employer overreacted to what was a summary offence that was at the low end of the spectrum of offences of a sexual nature and was not serious enough to require jail time.”

Arbitrator Mikus found that while “the employer did have cause to discipline him for his off-duty conduct and that this conduct involved a serious breach of the Criminal Code,” and that “his actions had the potential to unfavourably affect the Ministry of Transportation’s reputation and its ability to perform its functions,” that “I have decided to give him another chance to show he understands the inappropriateness of his actions and the consequences if he should repeat them.”

The decision to allow Richard to return to work must certainly have come as a shock to the MTO, especially since he was seemingly in clear violation of Sec. 1.2.1 of the MTO’s Enforcement Procedure Guide, which states: “The off-duty conduct of an enforcement officer may be of concern to the employer if the act or condition detrimentally affects the reputation or public image of the employer, undermines the employer’s authority, renders the employer unable to properly discharge his/her employment obligations, causes other employees to refuse or be reluctant to work with the employee or inhibits the employer’s ability to efficiently manage and direct operations.”

There’s also the question as to whether or not female truckers or associates will feel comfortable working with Richard, who admitted to harbouring anger towards women, a legitimate cause for concern for female drivers.

Glenn Dunphy, manager of the central region field services of road user safety operations, is cited in the decision as expressing concern that at one point, Richard admitted he had acted out of anger towards the police and women.

“Mr. Dunphy had similar concerns about the grievor’s comment about his anger towards women,” the decision reads. “There are many female drivers on the roads and numerous female Ministry employees that the grievor will encounter during his routine duties.”

At least one witness, who worked as a TEO at the Vineland inspection station, expressed in his testimony “concern for the public and the female drivers the grievor would encounter in performing his duties.” He also noted that he and other officers at the Vineland station “did not want to work with the grievor if he came back to work.”

Other officers testified in Richard’s defense, including Edie Strachan, who also happened to be president of her OPSEU Local. “She described the grievor as one of the most capable officers she has known and would have no difficulty working with him in the future,” Mikus wrote in her decision. “She had absolutely no concerns about the grievor’s professional judgment.”

Mikus acknowledged two young women who witnessed Richard’s acts were “traumatized” and that “his actions had grave consequences for his victims.”

Still, Mikus said, “it is not unusual for the (Ontario Grievance Settlement) Board to reinstate an employee without compensation and I am inclined to do so even though it seems an unusually long suspension.” Richard had gone without pay since September 2010, at the time of his termination, and was first suspended with pay in August 2008. This case could still go to a judicial review.

TIMELINE OF EVENTS

August 2006: Jeffrey Richard is employed by MTO as a transportation enforcement officer.

August 2008: MTO manager of central region field services of road user safety operations, Glenn Dunphy, is notified by Niagara Regional Police Services that Richard has been arrested for committing indecent acts near Welland. He was charged with four counts of Committing an Indecent Act. Later that month, Richard is suspended from duty, with pay as a TEO.

December 2009: MTO’s Dunphy holds fact-finding meeting with Richard, union representative Kerry Gennings and Lianne Pollock, a human resources advisor. Richard argued the incident had nothing to do with his employment.

January 2010: Richard does not attend his trial and is found guilty of two counts of committing an indecent act. He’s placed on probation for three years and given a conditional discharge.

June 2010: The MTO met with Richard to further discuss the case. Richard argued there was no conviction on his record, “since a conditional discharge is considered to be an administrative pardon.” MTO officials said Richard showed no remorse and “presented himself to be the victim.”

July 2010: The MTO sent Richard a letter, extending his suspension a further 20 days.

August 2010: Richard was notified he was now placed on temporary leave with pay. Two weeks later, Richard was advised that: &ldquo

;Because he had pled guilty to two of the four charges and, after the Ministry had reviewed two fact-finding investigations, the employer concluded there was a link between his off-duty conduct and his duties as a TEO. He was invited to attend a meeting on Sept. 3 to offer any additional information and/or mitigating factors he wanted the employer to be aware of.” In that subsequent meeting, Richard argued that the charges stemmed from a mental condition for which he was undergoing treatment. Afterwards, MTO officials determined that, in part because of Richard’s lack of remorse, that termination was the only option.

September 2010: Richard is terminated from his position with the MTO.

January 2013: Arbitrator Loretta Mikus rules that Richard should be allowed to resume his position as a transportation enforcement officer with the MTO.