Issue: Group II Offense with suspension (failure to follow written instruction); Hearing Date: November 1, 2000; Decision Date: November 2, 2000; Agency Name: Department of Corrections; AHO: David J. Latham, Esquire; Docket No: 5064
Department of Employment Dispute Resolution
DIVISION OF HEARINGS
DECISION OF HEARING OFFICER
In the matter of Department of Corrections Case Number 5064
Hearing
Date: November 1, 2000
Decision Issued: November 2, 2000
PROCEDURAL BACKGROUND
At the parties' joint request, the hearing was scheduled for the above date to accommodate the schedules of both parties.
APPEARANCES
Grievant
Representative for grievant
Representative for Agency
Assistant Warden
Two witnesses for Agency
ISSUES
Was the grievant's conduct on July 22, 2000 subject to disciplinary action under Section 5-10.16.B.1 of the Department of Corrections Procedures Manual? If so, what was the appropriate level of disciplinary action for the conduct at issue?
FINDINGS OF FACT
The grievant filed a timely appeal from a Group II Written Notice and a disciplinary suspension of one day's duration issued on August 1, 2000 because the grievant failed to follow supervisor's instructions and did not follow Post Orders. Following denial of relief at the third resolution step in the grievance process, the agency head qualified the grievance for a hearing.
The Department of Corrections (hereinafter referred to as "agency") has employed the grievant at the James River Correctional Center since June 1998 as a correctional officer. He has a good record and is well thought of by the Warden.
At the time he was assigned to Post 14, the grievant was given training regarding Post Order 14. Since that time, there have been periodic opportunities for the grievant to be reacquainted with this Order. Most recently, the grievant signed a certification on July 4, 2000 that he had read and fully understood the Post Order specific to his post.
Post Order Number 14 (Power House Tower) states in the Job Summary, "Do not leave your area of control without being properly relieved." This document also contains Specific Job Duties including, in pertinent part:
5. Ensure that all equipment assigned to post is accounted for and in working order before assuming post, and then signing equipment sheet with the off going officer.
13. Ensure that when you are outside of the tower that the shotgun is carried at all times.
26. Ensure that weapons are handled as described in the attached ASD Firearms Safety Manual.
The Academy for Staff Development (ASD) Firearms Safety Procedures Manual states on page 2, in pertinent part:
Shotgun will be stored on an easily accessible gun rack as per D.O.P. #435.
On July 22, 2000, the grievant was assigned to post #14 - the Power House Tower. The grievant assumed post #14 at 5:55am and was relieved by another correctional officer at 1:30pm. The oncoming correctional officer noted in the post #14 logbook at 1:30pm that "All keys and equipment is [sic] present and appears to be in good working condition." At 4:16pm, the supervisor, a lieutenant, made a security check at the Power House Tower. He observed that the shotgun assigned to post #14 was not in the gun rack. Upon being questioned by the lieutenant, the correctional officer on duty stated that she did not know the whereabouts of the weapon. She then admitted to the lieutenant that she had not inventoried the equipment when she came on duty at 1:30pm. Rather, she had taken the grievant's word that all equipment was accounted for. Further, she has subsequently admitted that she failed to follow the standard procedure of making rounds on the catwalk every 30 minutes.
The lieutenant had heard talk at the institution that two of the towers (including the Power House Tower) might be closed. As he had been on leave for one week, the lieutenant thought there was a possibility that, during his absence, a decision had been made to remove the shotgun from the Power House Tower location. The lieutenant then left the Tower and attempted to locate the shift Captain. He also attempted to speak with other officers to ascertain if anyone knew whether a decision had been made to remove the shotgun from Post #14.
The correctional officer who had relieved the grievant telephoned him at 5:07pm to ascertain the whereabouts of the shotgun. The grievant told her he had left the shotgun on the catwalk of the Tower while monitoring the ballpark. Shortly thereafter, the weapon was located on the catwalk. A few minutes later, the grievant called the lieutenant to tell him that the shotgun was at the tower.
During the next several days, the Assistant Warden investigated this incident. After obtaining written statements from, and conducting interviews with the grievant, the lieutenant and the relieving correctional officer, the Assistant Warden determined that disciplinary action was required by the circumstances of the incident. On September 1, 2000, the grievant's supervisor issued a Group II Written Notice because the grievant failed to follow a supervisor's instructions and because he did not follow Post Orders. A one-day disciplinary suspension was also imposed concomitantly with the Notice; the suspension was served on August 2, 2000.
It should be noted that the Assistant Warden also imposed disciplinary action on both the relieving correctional officer and the lieutenant for their failures to fully comply with appropriate procedure in the handling of this incident.
APPLICABLE LAW AND OPINION
The General Assembly enacted the Virginia Personnel Act, Va. Code § 2.1-110 et seq., establishing the procedures and policies applicable to employment within the Commonwealth. This comprehensive legislation includes procedures for hiring, promoting, compensating, discharging and training state employees. It also provides for a grievance procedure. The Act balances the need for orderly administration of state employment and personnel practices with the preservation of the employee's ability to protect his rights and to pursue legitimate grievances. These dual goals reflect a valid governmental interest in and responsibility to its employees and workplace. Murray v. Stokes, 237 Va. 653, 656 (1989).
Code § 2.1-116.05(A) sets forth the Commonwealth's grievance procedure and provides, in pertinent part:
It shall be the policy of the Commonwealth, as an employer, to encourage the resolution of employee problems and complaints . . . To the extent that such concerns cannot be resolved informally, the grievance procedure shall afford an immediate and fair method for the resolution of employment disputes which may arise between state agencies and those employees who have access to the procedure under § 2.1-116.09.
In disciplinary actions, the agency must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances. Employee Grievance Procedure, Virginia Department of Employment Dispute Resolution Rules for Hearing IV (D). The following procedural due process is required before disciplinary action:
Prior to . . . any disciplinary suspension, employees must be given
1. an oral or written notice of the offense,
2. an explanation of the agency's evidence in support of the charge, and
3. a reasonable opportunity to respond.
To establish procedures on Standards of Conduct and Performance for employees of the Commonwealth of Virginia and pursuant to §§ 2.1-114.5 and 53.1-10 of the Code of Virginia, the Department of Personnel and Training promulgated Standards of Conduct Policy No. 1.60 effective September 16, 1993. The Standards of Conduct provide a set of rules governing the professional and personal conduct and acceptable standards for work performance of employees. The Standards serve to establish a fair and objective process for correcting or treating unacceptable conduct or work performance, to distinguish between less serious and more serious actions of misconduct and to provide appropriate corrective action. Section V of the Standards of Conduct Policy provides in paragraph B.1 that failure to follow a supervisor's instructions, perform assigned work or otherwise comply with applicable established written policy constitutes a Group II offense. This same Group II offense provision is promulgated in Section 5-10.16B.1 of the Department of Corrections Procedures Manual.
In the instant case, the agency has borne the burden of proof necessary to demonstrate by a preponderance of the evidence that the grievant did fail to comply with applicable established written policy. The substantial weight of the evidence establishes that the grievant did leave the shotgun on the catwalk of the tower. The credible testimony of the lieutenant established that the shotgun was missing during his inspection. The lieutenant has also acknowledged that he failed to make a note in the tower logbook regarding the missing shotgun. The lieutenant's admission against interest (which he knew might cause him to be disciplined) enhances the credibility of his version of events.
The similarly credible testimony of the oncoming correctional officer established that she found the shotgun on the catwalk of the tower after calling the grievant at 5:07pm. Her testimony is bolstered by her admission against interest that she had failed to follow the required rounds1 procedure and thus, failed to discover the shotgun on the catwalk. She also acknowledged failing to properly account for the shotgun when she relieved the grievant from the post at 1:30pm. By acknowledging her failures to follow proper procedure, the oncoming correctional officer exposed herself to disciplinary action as well. Accordingly, her candidness in admitting her failures also increases the credibility of her testimony.
The credible testimony of these two witnesses outweighs the grievant's denial of his failure to return the shotgun to the storage rack. Therefore, because the weight of the evidence supports a conclusion that the grievant left the shotgun on the catwalk, his action did constitute a violation of written policy. The burden of proof now shifts to the grievant to demonstrate any mitigating circumstances.
The grievant disputes the words used in his conversations with both the oncoming correctional officer and the lieutenant. The grievant contends, in response to the question of the oncoming correctional officer about the whereabouts of the shotgun, that he said, "The shotgun is at the tower." The oncoming correctional officer, however, avers that the grievant said "I left the shotgun outside on the catwalk." The lieutenant states the claimant told him that he "left the shotgun outside of the tower while watching the ballpark." Even if the Hearing Officer accepts the grievant's version, the words he used do not preclude that the shotgun was left on the catwalk. The sentence "The shotgun is at the tower," include the possibilities that the gun was left inside the tower, or outside the tower. Thus, the Hearing Officer concludes that this issue is somewhat of a red herring and not dispositive of this case.
Although not directly argued by the grievant, his denial contains the logical inference that both the lieutenant and the oncoming correctional officer would have had to concoct their stories in order to implicate the grievant. Certainly, the evidence presented during the hearing contains neither any allegation nor any hint that such collusion occurred. It defies logic to conclude that the oncoming correctional officer would have called the grievant at 5:07pm to inquire about the whereabouts of the shotgun if, in fact, the gun was not missing. It is therefore reasonable to assume that, at that time, the shotgun was unaccounted for and that the call to the grievant had been precipitated by the lieutenant's inspection. As previously noted, the failures to follow procedure by both the lieutenant and the oncoming correctional officer were readily admitted by both individuals. This lends credence to their versions of what occurred.
Another issue raised not by the grievant, but by the agency, is the treatment of the other two individuals involved. As a result of the investigation, it was determined that both the lieutenant and the oncoming correctional officer failed to follow proper procedures. Further, the agency determined that disciplinary action was warranted for both of those individuals; such disciplinary action has been taken. Therefore, it is concluded that there is no evidence of any disparate treatment.
In summary, a preponderance of the evidence demonstrates that the grievant did violate an established written policy by leaving the shotgun on the tower catwalk. There have been no circumstances presented to mitigate this policy violation. Therefore, it was appropriate to impose disciplinary action in this case.
The Hearing Officer has given serious consideration to the level of discipline imposed in this case. Based on the nature of the infraction, there is no doubt that violation of an established written policy constitutes a Group II offense. Given the fact that a loaded shotgun was left unattended at a state correctional facility for an extended period of time, it would be wholly inappropriate to consider anything less than a Group II Written Notice. Department of Corrections policy provides that when a Group II Written Notice is issued, a suspension of up to 10 days without pay may also be imposed. In this case, the agency imposed only a one-day suspension. Under the circumstances herein, the Hearing Officer concludes that a one-day suspension is reasonable and appropriate. It is the minimum amount of time for which a suspension can be issued. The loss of one day's pay sends an important message to the grievant and yet, is not unduly harsh.
DECISION
The disciplinary action of the agency is affirmed.
The Group II Written Notice and one-day suspension will stand as imposed on August 1, 2000.
APPEAL RIGHTS
This hearing decision is subject to four types of administrative review. As explained below, to whom the appeal is directed, is determined by the nature of the alleged defect with the decision:
1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director's authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the hearing decision is not in compliance. The Director's authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director's authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.
A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.
Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.
David J. Latham
Hearing Officer