Issue: Group II Offense (W.N. only) (failure to follow instructions); Hearing Date: November 3, 2000; Decision Issued: November 7, 2000; Agency Name: Department of Corrections; AHO: David J. Latham, Esquire; Docket No: 5065

Department of Employment Dispute Resolution

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the Matter of Department of Corrections Case Number 5065

Hearing Date: November 3, 2000
Decision Issued: November 7, 2000

APPEARANCES

Grievant
Representative for Agency
Warden
Three witnesses for Agency

ISSUES

Was the grievant's conduct on June 26, 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 issued on July 25, 2000 because the grievant allegedly signed a control room inventory sheet without entering the upper control booth for inspection of the post. 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 Sussex II State Prison as a sergeant since October 1998. Previously, the grievant had been a correctional officer at other state correctional facilities.

As a sergeant, the grievant is responsible for supervising correctional officers assigned to various areas within his designated area of responsibility. At 9:45pm on June 26, 2000, the grievant was told at the beginning of his shift that he would be assigned to Housing Unit 1 (HU1). At 11:30pm, the grievant was advised that he would also have responsibility for Housing Unit 2 (HU2) for the balance of his shift. The grievant thus had a double workload until he went off shift at 6:15am on the morning of June 27, 2000.

As the supervisor of HU2, the grievant was responsible for compliance with Post Order Number # 5. The grievant was very familiar with this directive. Post Order Number # 5 (Housing Unit 2 Supervisor) includes, inter alia, General Duties and Record Keeping responsibilities. One of the General Duties states:

16. Inspect and account for all equipment assigned to this post and document such in your logbook prior to assuming the post. Report any missing or damaged equipment to your supervisor immediately.

One of the Record Keeping functions is to:

6. Ensure that all daily, weekly and monthly reports are completed properly and documented.

In order to comply with General Duty 16, the supervisor is required to enter each and every control room within his assigned area of responsibility. Once in the control room, the supervisor must conduct an inventory of the equipment assigned to that location. Such equipment includes, but is not limited to, weapons, ammunition, radios, handcuffs, keys and other equipment essential to the performance of a correctional officer's duties. If the supervisor finds that all equipment is accounted for and in proper working order, he must sign an inventory form to document that he has completed the required inspection.

In addition to the inventory sheet form, the supervisor is expected to log such activity in the supervisor's logbook. The expectation of the Housing Unit Manager, and the general practice, is that such inspections should be made in the beginning of each shift, preferably within the first hour. As the grievant had unexpectedly been assigned two housing units, it obviously took him longer to accomplish his normal rounds on the shift at issue herein.

The stated policy, although not written at the time, is that the correctional officer assigned to each control room should note in the logbook whenever anyone enters or leaves the control room. However, in actual practice such entries were not always being made. For example, the logbook for D pod reflects that the grievant entered that area at 2342 hours on the night of June 26, 2000 but no entry was made when he left the area, even though he was there for only a matter of minutes.

The testimony also established that there is no standard practice for determining the correct time to utilize in making logbook entries. Some officers look at wall clocks (battery operated) while others may use television monitors or wristwatches. For this reason, times entered in logbooks may be inconsistent from one another.

The grievant entered D pod of HU2 at about 12:30am on the night of June 27, 2000. He conducted an inventory of the equipment with the relief correctional officer then on duty. The logbook reflects that the relief correctional officer then on duty was there only for the 30-minute meal break (0025 to 0055 hours) of the officer assigned to that location for the shift. After making his inventory, the grievant was distracted, apparently by a radio call, and forgot to sign the inventory form; he then left the area.

Later in the shift, at approximately 3:00am, the grievant returned to D pod and asked the correctional officer to hand him the inventory sheet. At this time, the grievant was standing outside the control room. He signed the inventory sheet as having been completed and returned it to the correctional officer. Because the grievant was his superior officer, the correctional officer did not question the grievant about this incident. As the subordinate in this relationship, it is not at all surprising that the correctional officer would acquiesce to his superior's request without questioning him at the time.

However, the correctional officer believed the grievant had violated procedure because he did not see him conduct a physical inventory at the time he signed the inventory form. Accordingly, the correctional officer subsequently prepared an Internal Incident Report and submitted it to the Watch Commander. Following investigation, a Group II Written Notice was issued to the grievant on July 25, 2000 because he failed to comply with established written policy by signing the control room inventory sheet without entering the upper control booth for inspection.

It is worth noting that the correctional officer who filed the incident report had previously received a Group II Written Notice from the grievant for an essentially similar infraction - failing to inventory equipment.

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 not borne the burden of proof necessary to demonstrate by a preponderance of the evidence that the grievant failed to comply with applicable established written policy. The grievant has sworn under oath that he did, in fact, inspect and account for all equipment assigned to the post. Further he did sign the control room inventory sheet to certify that he had performed this inspection. The agency has produced only one witness with some personal knowledge of the incident. That witness is the correctional officer who saw the grievant sign the inventory sheet when he returned to pod D approximately three hours after actually conducting the inventory. The grievant admits that he did fail to sign the inventory sheet at the time he actually conducted the inventory. He maintains, however, that he conducted the inventory in the presence of another correctional officer but became distracted and later corrected his oversight by signing the inventory form after the fact.

The key witness - the correctional officer who actually witnessed whether the grievant conducted the inventory - was not present for the hearing. The agency did not request an Order from the Hearing Officer to direct his appearance at the hearing. Further the agency did not obtain an affidavit or a written statement from this witness. Hearsay testimony from both the grievant and the Warden as to this witness' recollection of the event was contradictory and inconclusive. There has been an assertion that the witness was ill on the day of this hearing. However, the record reflects that the agency did not designate this correctional officer as a witness in the list of witnesses faxed to the Hearing Officer on October 30, 2000. When a party that could provide a witness (or his affidavit) does not provide that witness, there is a rebuttable presumption that the evidence of that witness would be unfavorable to that party. In this case, as the agency did not proffer either testimony or an affidavit from this correctional officer, it must be presumed that such evidence was not favorable to the agency.

Accordingly, the sworn affirmation of the grievant that he did conduct the inventory must be weighed against the mere assumption of one correctional officer and hearsay from a witness whose affidavit could have been, but was not, produced for the hearing. In such a situation, the sworn testimony of the grievant carries more evidentiary weight than assumption of one witness who had reason to be unhappy with the grievant and hearsay of a witness who was not called to testify or asked to submit an affidavit.

The established written policy requires that equipment be inspected, accounted for and that such inventory be documented. The weight of the evidence establishes that the grievant did inspect and account for the equipment, and did document the inventory. The grievant readily acknowledges that his documentation of the inventory was accomplished approximately three hours after the actual inventory. It would, of course, be preferable that the grievant document the inventory at the time of completion. However, the established written policy does not specifically require immediate documentation. The grievant has provided a credible explanation for his failure to immediately document the inspection. Given the lack of any specific requirement, and the grievant's explanation, his failure to document immediately does not constitute a violation of the written policy.

The grievant has acknowledged his failure to complete the supervisor's logbook for the 10pm-6am shift on the night of June 26-27, 2000. This logbook is a reasonable requirement and should have been completed by the grievant. His failure to complete this logbook certainly warrants at least informal counseling. However, the grievant's failure to complete this logbook was not a basis for, nor was it included in, the Written Notice issued to the grievant on July 25, 2000. Therefore, this omission by the grievant cannot form a basis for discipline in connection with the grievance presently before the Hearing Officer.

In summary, the agency has not shown, by a preponderance of the evidence that the grievant failed to enter the upper control booth or that he failed to conduct an equipment inspection on the night of June 26-27, 2000. Therefore, a Group II Written Notice was not appropriate in this case.

In his grievance, the grievant contends that various actions of the agency were inappropriate and resulted in the unfair imposition of the Written Notice. In view of the decision reached in this case, most of those issues are moot. Nevertheless, the Hearing Officer will address some of the issues not already addressed above. First, grievant objected to the agency's notification to the correctional officer who filed the incident report, that there would be a hearing on July 25, 2000. If the agency reasonably anticipated that this officer's testimony might be required, it was not a violation of the grievant's right of privacy to notify a key witness because his testimony might have been required.

Second, grievant suggests that early preparation of his Written Notice was a prejudgment of his case by the agency. The typing misalignment on the Written Notice could have been caused by reasons such as roller cog slippage of the typewriter or removal and reinsertion of the document. Moreover, even if the Written Notice had been prepared prior to completion of the agency's hearing, it could easily have been destroyed if the agency had concluded that such discipline was not called for.

DECISION

The disciplinary action of the agency is reversed.

The Group II Written Notice issued on July 25, 2000 is hereby expunged from the grievant's personnel records.

It is recommended that the grievant's supervisor conduct informal counseling regarding the grievant's failure to timely sign the inventory control sheet and his failure to complete the supervisor's logbook and that the supervisor maintain written documentation of such counseling.

APPEAL RIGHTS

This hearing decision is subject to four types of administrative review, depending upon 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, Esq.
Hearing Officer