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In the Matter of the Interest Arbitration Between Marion County Law Enforcement Association and Marion County. IA-21-95.
This is an interest arbitration case arising out of a dispute between the parties over mid-contract bargaining on the appropriate salary level and classification for purposes of layoff of a newly created court security officer position. The Association represents certain employees in the Marion County Sheriff's Department, including deputy sheriffs, court service transport officers, and corrections officers. The collective bargaining agreement covers the period of July 1, 1995 through June 30, 1997.
The parties were unable to resolve the issues mentioned above and submitted the matter to arbitration pursuant to ORS 243.7421 as amended by the 1995 Oregon Legislature, SB750, Chapter 286, l OR Laws of 1995, and OAR 115-40-015, as amended by Oregon Employment Relations Board rules effective August 1, 1995. A hearing was held on February 22, 1996 in Salem. At the close of the hearing, the parties agreed to submit post-hearing briefs, which were received on March 25, 1996. The hearing was deemed closed as of March 25,1996.
In accordance with the requirements set forth in ORS 243.746(3), as amended 1995, the parties exchanged written last best offers and furnished them to the arbitrator. The Association's offer was as follows: (** indicates underline in original)
*Article 14, Section 6. The newly established position of Court Security Officer shall be paid at the Deputy Sheriff wage scale. Court Security Officers shall be eligible for all benefits provided in this contract for Deputy Sheriffs.*
Article 29, Layoff, Section 40 paragraph 2. All Deputy Sheriff positions shall be considered as one job classification. This includes but is not limited to Deputy Sheriff Trainee Basic, Deputy Sheriff Intermediate, Deputy Sheriff Advanced, Court Service Transport Officer Basic, Court Service Transport Officer Intermediate, Court Service Transport Officer Advanced, *Court Security Officer Basic, Court Security Officer Intermediate, Court Security Officer Advanced*, Deputy Sheriff Basic, Deputy Sheriff Intermediate, and Deputy Sheriff Advanced.
The County's last best offer was that, with respect to Article14, Section 6 (a new section), the appropriate salary range be 16D.The County's last best offer on the layoff issue was to establish a separate and distinct classification of Court Security Officer:
Article 29. Section 5, All Court Security Officer positions shall be considered as one lob classification.
For purposes of analysis and decision, the essence of the positions of the parties on the issues is the Association wants the new position to be paid at the Deputy Sheriff and Corrections Officer wage scale and have the same benefits. The County wants it to be paid at a lower wage scale comparable to a Deputy Sheriff Trainee and Corrections Officer Trainee. As to the layoff issue, the Association wants the position treated the same as the Deputy Sheriff job classification. The County maintains it should be treated as a separate classification.
The Association After setting forth the new statutory criteria, its legislative history, and summarizing a number of prior interest arbitration awards in which the "interest and welfare of the public" was addressed, the Association uses recent interest arbitration awards made under the new law to extract what it considers to be a common theme: It is critical for the interest and welfare of the public that public employees be competent, well paid, and motivated in the performance of their work, and that their cost be reasonable. The Association argues that most arbitrators have taken the proposition to mean employees should be paid wages paid wages in line with comparable jurisdictions if the employer can afford it.
In IAFF and Winston-Dillard Fire District No# 5, a post-SB750 interest arbitration case, Arbitrator Lehleitner held that where the public employer has found it difficult to pass levies, it can be reasonably concluded it is not in the interest and welfare of the public to incur obligations through wage adjustments that result in higher taxes. He went on to state "as a general proposition it is in the interest and welfare of the public to pay a competitive wage unless the District's finances are such that to do so would create unreasonable financial obligations." The Association maintains that had Lehleitner based his decision on comparability, he would have awarded the union's proposal.
The Association cites four other post-SB750 interest arbitration decisions that analyze the phrase "interest and welfare of the public." Arbitrator Sorensen-Jolink concluded:
It is the interest and welfare of the public that the compensation received by Bargaining Unit members be comparable to the compensation received by like personnel in the three comparable counties so that the County can attract and retain qualified personnel... It is also in the interest and welfare of the public, however, for the County to have sufficient staff to provide the service the public demands without overworking its employees... Marion County Law Enforcement Association and Marion County Board Of Commissioners and Sheriff at P. 32.
In City of Portland and Portland Police Commanding Officer Association, Arbitrator Hayduke stated he saw the case:
... as a contest between two conflicting policies, both of which can rightfully claim to be in the public interest. On the one hand, it is certainly in the public interest for the City to generally keep personnel costs to a reasonable minimum... on the other hand, efficient operation of a city police bureau--charged as it is with the most critical public safety function--is of paramount importance. The interest and welfare of the public must necessarily be served by a system of equitable compensation that produces highly committed and motivated police command officers. At p. 19.
Arbitrator Kienast, in Washington County and Washington County Police officers Association, decided that the County's proposal served the interest and welfare of the public better because it lowered costs and stressed wellness over cure. He concluded, even though some employees were at a disadvantage:
This disadvantage to a few cannot be found to outweigh the benefit to the public's interest of providing better medical coverage at lower cost to the -majority of unit employees. At p. 7.
Arbitrator Bethke's comprehensive analysis and discussion of the new statute and statutory criteria in Association of Oregon Corrections Employees and State Of Oregon resulted in the conclusion that "the interest and welfare of the public" is without easy definition. He concluded:
Given two proposals that are within the broad range of what may be called reasonable, it is not clear that the 'interest and welfare of the public-' will typically yield any basis for picking one proposal over another. At p. 10.
The Association cites Arbitrator Axon's award in Marion County Law Enforcement Association and Marion County, 1992, for two propositions: (1) the parties agreed to the same comparable jurisdictions--and continue to do so, and (2) the arbitrator agreed with the Association's position of combining like classifications into one so as to avoid problems at layoff time.
The Association contends the Court Security officers should be paid at scale 19D, comparable to the Deputy Sheriff and Corrections Officer scale, and have the eligibility to be certified and obtain certification pay. Moreover, the Court Security Officers should be treated as part of the Deputy Sheriff series for purposes of layoff.
While recognizing that most arbitrators give significant deference to how an employer runs its business and classifies its positions, the Association contends the County's proposal to use lower paid positions to perform court security work is flawed. It is in the interest and welfare of the public to be served by highly competent and well-trained employees. The importance of court security should not be underrated and has not been underrated in the past. The County has, for the most part, used certified officers for court security in the past. Court Security Officers need specialized training and will be enhanced by having Board on Public Safety Standards and Training, BPSST, certification and training. Even though the officer's primary duty will be to provide security in the courtroom and guard inmates, the officers will, on occasion, have to make arrests, deal with violent confrontations in the courtroom, and respond, as any other law enforcement officer would, to threats to public safety and security. Therefore, the officers should be well paid and professionally trained. It is in the interest and welfare of the public to have courtroom security by the most competent personnel available.
When the secondary criteria of comparability is considered, the County is unique. of the comparable counties, none has taken the approach toward courtroom security that Marion County has taken. The County cannot justify its position by using Yamhill County as a comparison because it is too small to meet the statutory criteria of comparability. None of the comparable jurisdictions has a different rate of pay for court security employees than it has for deputy sheriffs.
The County's proposal is not in the interest and welfare of the public because it is unfair to the employees. To have these employees receive less pay and be less qualified than deputies or corrections officers is not in the employees' best interest or that of their co-workers.
In 1991 the County laid off all but two of its court service transport officers. Those laid off eventually ended up working as corrections officers or deputies. They were considered to be undertrained and underqualified by the head of corrections causing concern and stress on the part of the former court service transport officers. Presently, two court service transport officer employees remain. They receive the same pay as deputies, and recently went to BPSST and became certified.
Deputy sheriffs are used as transport officer, corrections officers are used as court security officers, and now the County wants another classification to do the same work. If layoffs occur, the County proposes to deny court security officers the right to bump into another classification, which is contrary to what Arbitrator Axon initially decided when he granted the Association's proposal to combine classifications for layoff purposes. To do less here would not be in the interest and welfare of the public.
When the Sheriff's office was requested to provide more security in the court system, the Sheriff 's office asked the Marion County Commissioners for more deputy sheriffs because it was recognized that they should use deputies to perform the duties. Only when the Commissioners ordered the Sheriff's office to find a cheaper solution did the new classification appear.
The Sheriff's office had to go through considerable manipulation to get BPSST to agree the classification should not be certified. Only by promising that the employees would be used in such a low profile that they would not meet the statutory definition of a police officer or a corrections officer did BPSST give its approval.
In a large law enforcement agency, deputies do diverse tasks. Some provide court security and will continue to do so. Others work in programs that do not involve normal patrol duties and consequently make few arrests. To state that court security officers will not be doing a full range of duties that a deputy does begs the question as to whether they should be paid the same as a deputy. The court security officers will be working alongside deputies, corrections officers, and the two certified court transport officers.
The County
The County contends that in none of the post-SB750 interest arbitration awards has there been an attempt to reduce the criterion "interest and welfare of the public" to less than first priority or to suggest it is nothing more than a compilation of two secondary criteria. Arbitrator Kienast, in Washington County and Washington County Police Officers Association, stated:
Oregon public policy as expressed in ORS 243.746, as amended in 1995, clearly mandates the 'interest and welfare of the public' be the most heavily weighed single criterion regarding final-offer arbitration decision. At p. 5.
It is in the interest and welfare of the public for the County to establish wages for classifications that are fiscally responsible and commensurate with the defined responsibilities and qualifications of the position. The County engaged in a comprehensive review of the classification in question and concluded range 16D is appropriate. To award a higher salary range would not be fiscally responsible or consistent with the duties and responsibilities of the classification; therefore, it would not be in the interest and welfare of the public.
Contrary to the Association's assertion that the County wants to run the department as cheaply as possible, the County's goal is to present the best service to the public at the most reasonable cost. Taxpayers fund county government; therefore, the County must be in tune with their desires. In part, that is why the collective bargaining agreement contains a management rights clause. It would be irresponsible and contrary to the interest and welfare of the public for the County to forego its contractual right.
The County agrees with the Association that the interest and welfare of the public is served when competent, trained personnel are employed. In accordance with sound personnel practices, the County established the education, experience, and certification levels needed to provide the services expected of the classification. The County used BPSST to review the proposed duties of the position. That review found that law enforcement or corrections certification was not required. The County should not have to pay for a level of certification that is not required.
It is in the interest and welfare of the public to create and utilize the Court Security Officer classification so that certified law enforcement officers can be taken f rom the courtroom and put in the public arena to protect the public.
Although ability to pay was not an issue, the Sheriff's office budgeted for the positions at the lower grade. Any increase in the salary of the positions will have a fiscal impact.
The successful recruitment effort shows that the recommended salary level is appropriate. There are no data available to show what retention experience will be.
Comparison of overall compensation is the most important of the secondary criteria in this case. The issue of compensation comparison is limited to salary because the classification receives all other benefits defined in the collective bargaining agreement.
Even though the transportation deputy performed duties at the higher level and the new classification will perform similar duties, it does not follow that they should be paid at the same level. The primary duties of the transportation deputy involve the custody, control, and supervision of individuals convicted of or arrested for a criminal offense and confined in a place of incarceration; therefore, it was required to be corrections certified.
The primary duties of a deputy are conducting investigations and interrogations; gathering evidence; enforcing traffic and criminal laws; operating radar; making arrests; serving subpoenas; and transporting arrested, sentenced, or detained individuals. The new classification duties do not include custody, control, or super-vision as do the duties of a transportation deputy, nor do the duties of the new classification include duties similar to those of a patrol deputy. The primary duties of the new classification are courtroom security, and it will be under the direction of a certified officer.
The Association ignores the fact that the salary level established for the new classification reflects its different primary duties, less education and experience, and the absence of a certification requirement. It is not a case where, as the Association alleges, equivalent employees are being paid less and are required to be less qualified than deputies or corrections officers. It is common practice for co-workers to have difference duties and different salaries.
Marion County should not be penalized with a higher unwarranted salary level for the new classification simply because the other counties, which have been used as comparables in the past, do not use classifications other than certified deputies. Those counties are using over-qualified employees to perform the same duties as the new classification.
The County used data from Yamhill County not for comparative compensation purposes but rather to add credibility to the distinction in duties identified by the County and by BPSST. Since the personnel in the three comparable counties are not alike, for reasons previously stated, the arbitrator must rely on the County's determination regarding salary level.
The collective bargaining agreement requires that employees who displace other junior employees in a layoff situation be qualified to so displace those employees. In the new classification, it is the primary duties that determine qualifications and salary. In layoffs, qualifications are paramount. The new classification cannot meet the requirement of any of the classifications defined in Article 29, Section 4, of the agreement. It is not in the interest and welfare of the public to allow unqualified employees to displace certified, trained, and experienced deputies. The new classification should have its own classification in the layoff provisions.
The County hires employees to perform necessary and defined duties that meet the interest and welfare of the public. In the event of layoff, it would expect that any employee who displaced another employee be qualified for the position into which the employee moves.
The Association has the right to bargain over the salary level of the new classification; however, in the instant case, it has failed to offer substantive reasons why the level should be higher than recommended by the County.
It must be recognized that the standards on which interest arbitration decisions are based changed when SB750 became law. The role of the arbitrator has been made more difficult having to select or reject entire packages.
By choosing to change the way it provides court security, Marion County did not diminish the level of security in the court. It should not be penalized for being good stewards of its resources.
Since 1991 the Association has been the exclusive bargaining representative of certain employees of the Marion County Sheriff's Department, including deputy sheriffs and corrections officers. From an expired contract between the Oregon Public Employees Union and Marion County, the parties attempted to negotiate a successor agreement. They failed to resolve several issues and eventually ended up in interest arbitration before Arbitrator Axon, who issued an award on August 6, 1992. The award contained the following finding and conclusion that are pertinent here:
The parties came to the arbitration hearing with identical lists of Oregon counties with which they wish to compare themselves for the purpose of establishing the terms and conditions of the Collective Bargaining Agreement... Washington, Lane, and Clackamas Counties. The three counties are all within the geographical proximity to Marion County and all have parity pay for correction officers and deputy sheriffs. Therefore, the Arbitrator adopts the Oregon counties of Lane, Clackamas, and Washington for the purpose of evaluating, comparing, and establishing the terms of this ... Agreement. Marion County Law Enforcement Association and Marion County, at P. 8.
In 1994, because of increasing courtroom violence that was occurring nationwide and in Oregon, the Sheriff's office decided an increased focus had to be made on courtroom activity. The office asked the county budget committee for six more deputy sheriff positions to carry out its responsibility toward courtroom security. The budget committee indicated the Sheriff's office should look to alternative ways of providing such security at less cost. Upon review, the office came up with a proposal to create the Court Security Officer classification that is in dispute here.
The County's personnel office received a description of the duties and responsibilities of the new classification from the Sheriff's office, compared those duties and responsibilities with like jobs, and decided what level of education and experience should be required to perform the job. The personnel analyst who did the work on the new classification wrote a report in which she set forth in detail her findings and methodology in arriving at a recommended salary range and description of the essential functions and requirements of the new classification.
The personnel analyst's report, which was adopted by the County, can be summarized as follows: (1) Increased violence in courtrooms and the number of violent offenders in trials of a high risk nature, including smuggled weapons, violence between individuals and attempts to escape, has caused a need for the creation of a position with primary responsibility for providing courtroom security. (2) The Board on Public Safety Standards and Training did not require that the Court Security officer classification be certified because its primary duty was courtroom security as opposed to custody, control, or supervision of individuals convicted or arrested for a criminal offense and confined. (3) The certified officer class and the new classification were distinguished from each other based on the lack of certification requirements,, lead direction over the new classification by a certified officer, and less qualifying experience for the new classification. (4) The County's market survey of Clackamas, Washington, Lane, Multnomah, and Yamhill Counties found that those counties use certified employees to provide court security or they contract out for the service. (5) Yamill County was in the process of creating a classification, similar to the new Marion County classification, that would wear a weapon and work under a certified officer. (6) Based on the analyst's findings, she recommended a salary range of 16D, at the same level as non-certified deputy trainee and non-certified corrections officer trainee.
When the County recruited applicants for the new classification, it received 174 applications; of those, 135 met the minimum qualifications.
The duties of a court security officer will differ from those of deputy sheriff in some ways. The court security officer will not have patrol duty, will not write traffic citations or major incident reports, will not drive vehicles alone other than to transport vehicles, and will not be able to interchange all duties with deputy sheriffs.
The County utilizes deputy sheriffs, court service transport officers, and corrections officers for courtroom security; all are required to be BPSST certified. There is violence in courtrooms and deputies have to make arrests.
Training for the court security officers will include courtroom security procedures, firearms, cardiopulmonary resuscitation, first aid, arrest procedures, search and seizure, blood, voice commands, restraints, use of chemicals, brute force, and deadly weapons. They will provide security in the courtroom alone, without a deputy sheriff present, and will have to make arrest. At times they will work alongside deputies, corrections officers, and court service transport officers. They will be in the same uniform as deputy sheriffs and will drive vehicles marked "Sheriff." If they come upon an accident, they will have to respond and call for a deputy backup. When transporting prisoners the court security officers will be accompanied by a deputy.
When the official at BPSST was first asked about the court security officer position by the County's personnel analyst, he said it would have to be certified. Later, when a captain from the Sheriff's office called him and emphasized that the duties of the new classification were primarily courtroom security, he changed his mind and later wrote a letter to the captain stating the classification was not certifiable.
The Association does not challenge the right of the County to establish and define the duties, responsibilities, and qualifications of the court security officer classification. The Association's claim is the right to negotiate the impact of the County's decision with respect to salary and how to treat the classification in case of layoff.
The counties of Lane, Washington, and Clackamas have no separate classification for court security officer. Such work is done by deputy sheriffs. In 1995 Washington County had a population of 370,000; Clackamas County had 308,600; Lane County had 301,900; and Marion County had 258,000.
The parties' collective bargaining agreement provides that where an employee is laid off, such employee may elect to displace an employee in another classification provided the employee electing to displace another employee has a greater continuous service date and is qualified to displace an employee. The agreement groups all deputy sheriff positions and court service transport officer positions into one classification for purpose of layoff. The Association proposes to include court security officers in this group.
The classifications of corrections trainee and deputy sheriff trainee provide that incumbents of those positions are expected to be promoted to corrections officer and deputy sheriff within a specified time. It is expected that trainees in each classification will become BPSST certified when they reach the non-trainee level.
Since the enactment into law of SB750, the primary criterion upon which arbitrators must base their findings and opinions is the interest and welfare of the public. Secondary priority is to be given to the other criteria listed under ORS 243.746(4). Like those arbitrators who have issued awards in interest arbitration cases after the law was amended, I find the phrase "interest and welfare of the public" to be imprecise. A review of some of the awards issued prior to passage of SB750 adds little to render the phrase less imprecise or more definitive. Nonetheless" interest arbitrators are charged with weighing the last best offers of each party and deciding which to adopt by applying the criteria in the statute.
The evidence on the record, on balance, supports the selection of the Association's last best offer on both issues. Consideration of the interest and welfare of the public criterion and the applicable secondary criteria all lead to that conclusion.
While the County's argument and reasoning is sound, the Association's rationale is persuasive. Although the County decided it could provide courtroom security at reduced personnel costs, thereby serving the interest and welfare of the public, other considerations of significant long-term impact on the public interest and welfare inveigh against that proposition.
It would not be in the public interest to allow the County, by embracing its proposal, to create a classification to perform a part of the tasks that a deputy sheriff performs and set lower qualifications so as to distinguish it from the deputy sheriff classification series for the overriding purpose of setting a lower salary. Such action would serve to diminish the integrity of the collective bargaining agreement, which already identifies the classifications in the bargaining unit and the rate of pay appropriate to each. No deputy sheriff performs all the duties listed in the class specification. Some deputies work in the court security system., some work in school programs, and some do other non-patrol work that does not involve traffic duty. Court security officers will perform some of the tasks of deputies and court service transport officers and will be working alongside them. The County proposes to use yet another classification to do work being done by deputy sheriffs, court service transport officers, and corrections officers, all of whom are BPSST certified. A classification specification document written for the sole purpose of defining lower-paid positions cannot detract from the fact the new classification will perform duties traditionally performed by BPSST certified and trained officers.
It would not be in the public's interest and welfare to endorse a piecemeal erosion of the duties of the deputy sheriff class series as it has been traditionally defined. Presently, the County is attempting to withdraw some of the functions of a deputy and place them under a less-qualified individual at a lower rate of pay. When budgets get even tighter, it could well be that another function will be withdrawn. Given the sometimes violent nature of present-day courtrooms and the attendant problems of protecting courtroom occupants, it would seem to be in the best interest of the public to have superbly Qualified law enforcement personnel performing security duties.
Although the County's argument to the effect it is its contractual right and in the public interest and welfare to define and classify positions is worthy of consideration, that argument must be weighed against the public's interest in being served by highly competent and well-trained employees and the Association's right to bargain the salary level of such positions. The new law does not allow an employer to unilaterally determine the public interest and welfare. This is especially significant in a law enforcement agency where the most critical of public safety functions is performed. The importance of court security should not be underemphasized, and it has not been underemphasized in the past by the County.
The County argues it sought and obtained BPSST's agreement that the duties and responsibilities of the new classification did not require that it be certified and that the County should not have to pay for a level of certification that is not required. That argument misses the point. The point is that by writing the classification duties and qualifications as it did to ensure BPSST acquiescence, the County lowered the standard of courtroom security and infringed upon a well-established area of deputy sheriff classification responsibility, neither of which is in the public's interest and welfare.
While it is in the public interest and welfare to be able to have more deputies "in the pubic arena to protect the public," as the County asserts, it is also in the public interest to have highly trained personnel protecting occupants of courtrooms who are equally in the public arena. Moreover, it would serve the public's interest to have qualified and trained deputies performing that important work so as not to diminish the quality of the protection the public receives and to afford the sane amount of diversity in assignment of deputies that the County presently enjoys.
The County urges its successful recruitment to fill the court security officer positions shows the recommended salary level was appropriate and attracted qualified applicants at the lower level. It does not show, however, what the retention success rate will be. Since there is no built-in career ladder whereby court security officers are trained and promoted to higher levels within the law enforcement hierarchy as are deputy sheriffs, it is not unreasonable to expect they will move on to other employment as they gain experience and knowledge. It would be in the public's interest to have full interchange of duties between court security personnel and other law enforcement personnel.
When and if layoffs occur, if the new classification's incumbents cannot meet the requirements of any of the classifications defined in Article 29, Section 4, of the agreement, then, as the County argues, it can invoke that part of the layoff provision that requires displacing employees to be qualified. There is no evidence on the record to show what qualifications individual applicants have. Some may very well be qualified to displace another employee; however, it is doubtful any would have a greater continuous service date than incumbents of classifications listed in Section 4; therefore, the point likely is moot.
Of the secondary criteria on which evidence and argument were offered, only that concerning comparison of overall compensation with other employees performing similar services in comparable communities need be discussed in any amount of detail here.
The County concedes that the ability of the county to meet the costs of the proposal was not an issue. Yet, in its brief, the County stated that any increase in the salary of the positions will have a fiscal impact on the Sheriff's budget. Suffice it to say, there is no evidence to support a conclusion that the County cannot pay the increase. The County had the burden to show its inability.
The ability of the County to attract and retain qualified personnel at the wage and benefits provided was discussed earlier. As to overall compensation and benefits presently received by the employees, salary is the only issue because these employees will receive all benefits to which they are entitled under the collective bargaining agreement. Cost of living, stipulations of the parties, and other factors were not at issue.
Arbitrators Axon and Sorensen-Jolink decided that the counties of Lane, Washington, and Clackamas were appropriate for the purpose of comparing, evaluating, and establishing the terms of the parties' agreement in 1982. I will follow that precedent here. None of the three counties has a different pay rate for employees who perform court security work than for deputy sheriffs. in fact, it is deputy sheriffs who do the court security work in those counties. All three counties have populations within the range of Marion County's population.
I agree with Arbitrator Sorensen-Jolink that it is in the interest and welfare of the public that compensation received by employees be comparable to the compensation received by like personnel in the three comparable counties. There is no requirement that the duties they perform be identical; it is sufficient they be similar. The County's past use of deputies to perform court security work and its continuation in doing so is sufficient to establish the required similarity. Writing a new classification specification and lowering the qualifications of applicants to perform court security work is insufficient to overcome the established similarity.
In my opinion, the last best offer of the Association is in the best interest and welfare of the public and it ensures that the compensation received by the new classification is comparable to the compensation received by other employees who perform similar services in comparable communities.
Based on the evidence and arguments offered by the parties, and pursuant to the criteria set forth in ORS 243.756, as amended by SB750, the last best offer package of the Association is hereby awarded and ordered implemented.
Dated this 11th day of April 1996.
Jack H. Calhoun, Arbitrator
For the Association: John Hoag
For the County: Roy Flint