Issue: Group III Office with termination (failure to follow instructions and fraternizing); Hearing Date: November 17, 2000; Decision Date: November 27, 2000; Agency: Department of Corrections; AHO: David J. Latham, Esquire; Docket No: 5068
Department of Employment Dispute Resolution
DIVISION OF HEARINGS
DECISION OF HEARING OFFICER
In the Matter of Department of Corrections Case Number 5068
Hearing
Date: November 17, 2000
Decision Issued: November 27, 2000
PROCEDURAL BACKGROUND
Two Written Notices had been issued to the grievant on August 31, 2000 and he filed grievances for both Notices. He requested that both grievances be heard at the same hearing. As both Written Notices resulted from the same incidents, the hearing was conducted on both issues and this decision will address both grievances. Difficulty in setting a mutually convenient hearing date for all participants, moving of the Hearing Division's offices and the extended holiday weekend all contributed to this decision being issued 33 days after appointment of the Hearing Officer.
APPEARANCES
Grievant
Representative for Grievant
Representative for Agency
Assistant Warden, Two Witnesses for Agency
Four Witnesses for Grievant
ISSUES
Was the grievant's conduct on June 13, 25 & 30, 2000 subject to disciplinary action under Section 5-10 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 two Group III Written Notices issued on August 2, 2000 because the grievant refused to obey instructions that could result in a weakening of security and, for fraternization with inmates. The grievant was also suspended from duty from July 7 through July 21, 2000. Subsequently, the grievant was discharged on July 31, 2000. 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 I State Prison as a correctional officer since 1996. The grievant was promoted to correctional sergeant in 2000.
Between July 5 and August 11, 2000, an agency investigator investigated the activities of a certain inmate (hereinafter referred to as inmate F). In the course of that inquiry, the investigator reviewed a log of telephone calls made on the inmate telephone system. That review led to a further review of telephone calls made on state telephones (which are normally only accessible to correctional officers). From that review, it was determined that inmate F may have made personal telephone calls on state telephones on June 13, 25 & 30, 2000. The investigator then reviewed internal security videotapes for these dates. While reviewing these videotapes, the investigator happened to observe certain activity of the grievant that he believed should be reported. The investigator reported his concerns to the warden on July 27, 2000.
During the course of the grievant's training, he had received and read the agency's policy governing employee relationships with inmates, probationers, or parolees of the Department. The grievant knew from this policy that fraternization or other non-professional association by and between employees and inmates is prohibited.
On October 6, 1999, the Assistant Warden distributed an e-mail message to housing unit managers and supervisory personnel throughout the correctional center. The subject of the message is Inmate Access to Building Office Areas and states:
NO Inmate is allowed access to the 2nd and 4th floor Office/lobby areas for ANY reason.
This restriction includes:
Strict enforcement of this policy will be expected. If you are in doubt, you had better ask. There will be a zero tolerance.
The grievant first met inmate F in approximately 1992 or 1993. The grievant had gone to a nightclub with friends and met inmate F that evening. The grievant had no further contact with inmate F until the inmate was transferred from another correctional center to Sussex I State Prison in June 2000. On June 13, 2000, the lieutenant to whom the grievant reported requested that inmate F be sent to see him at the 2nd floor office/lobby area where the grievant was assigned. When inmate F arrived, he sat down and spoke with the lieutenant. When the grievant heard the inmate's name, he asked inmate F if he knew certain people who had been in the group at the nightclub in 1992 or 1993. Inmate F responded affirmatively. The inmate then arose from his chair, approached the grievant, "gave him five" and embraced the grievant. The grievant had willingly extended his hand to accept the handshake but then the inmate put his left hand on the grievant's back and pulled the grievant into a hug. The grievant responded by putting his own left hand around the inmate's shoulder.
On June 13, 2000, inmate F remained in the 2nd floor office/lobby area with the grievant from 7:40pm until 9:17pm. During this prolonged visit, inmate F used the state telephone at approximately 8:10pm. Agency policy provides that the state telephone is to be used only by correctional officers and staff. In an emergency, and if permission is granted, an inmate may use the state telephone to deal with the emergency. The grievant acknowledged that inmate F did use the telephone. Although he was within six feet of the inmate, the grievant does not recall what the inmate was discussing during the telephone conversation. There is no evidence that the call was an emergency.
On June 25, 2000, when the grievant was again on duty in the 2nd floor office/lobby area, inmate F entered the area at 6:28pm and remained until 7:34pm. The grievant greeted inmate F by slapping his fist together with the inmate. At 7:18pm, another inmate and the grievant met in the office/lobby area and greeted each other by slapping the palms of their hands together (gave each other five).
At the time of distribution of the above e-mail message, the grievant had not been promoted to sergeant. As a non-supervisory correctional officer, the grievant was not on the mailing list for distribution of this message. The grievant's immediate supervisor (the lieutenant referred to above) did receive this message. All supervisors were expected to disseminate this information to the correctional officers for whom they had responsibility. The grievant did not receive a copy of the e-mail message. He was not told about the message. He did not sign an acknowledgement either for having read or for being told of the instruction.
The evidence at the hearing established that the above policy was enforced in Housing Unit 1. The grievant was assigned to Housing Unit 3. During the time the grievant worked in Housing Unit 3, the policy was not uniformly enforced, at least on the grievant's shift. It was not uncommon for inmates to come into the office areas to use the telephone, clean the office and talk with correctional officers. By contrast, Housing Unit I did not permit inmates in the office/lobby areas and correctional staff, not inmates, performed cleaning chores.
Inmate F has been in at least 15 different correctional facilities since1989. He is currently serving two consecutive ten-year sentences for conspiracy to distribute controlled substances at another state correctional facility. He has previous sentences for multiple offenses including crimes of violence.
The lieutenant to whom the grievant reported has been disciplined and discharged as a result of these incidents.
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.8 those offenses that include acts and behavior of such a serious nature that a first occurrence should normally warrant removal. These same Group III offense provisions are promulgated in Section 5-10.17.B of the Department of Corrections Procedures Manual. Such offenses include, but are not limited to:
16. Refusal to obey instructions which could result in a weakening of security.
18. Fraternizing with inmates, or non-professional relationships with inmates, probationers, or parolees which pose a threat to the security of an institution, an employee, an inmate, or a citizen of the Commonwealth.
Chapter 5 of the Department of Corrections Procedures Manual addresses Rules of Conduct Governing Employees' Relationships with Inmates, Probationers, or Parolees. Section 5-22.7 specifically treats improprieties and states, in pertinent part:
A. Improprieties: Improprieties or the appearance of improprieties, fraternization, or other non-professional association by and between employees and inmates, probationers, or parolees or families of inmates, probationers or parolees is prohibited. Associations between staff and inmates, probationers, or parolees which may compromise security or which undermine the employee's effectiveness to carry out his responsibilities may be treated as a Group III offense under the Standards Of Conduct and Performance (Procedure 5-10).
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 refused to obey instructions that could result in a weakening of security. The agency had distributed an e-mail message that specifically and unambiguously prohibited inmates from being allowed access to the 2nd floor Office/Lobby area where the grievant was assigned. However, this e-mail was not distributed to the grievant. There is no documentation or testimony to establish that the grievant was ever notified of this policy. Moreover, the grievant has testified credibly that he was unaware of the policy.
More significantly, the evidence and testimony established that in the Housing Unit to which the grievant was assigned, the policy had not been uniformly enforced, at least during the shifts on which the grievant worked. The lieutenant to whom the grievant reported violated the policy and permitted others to violate it. As a newly promoted sergeant, the grievant took his cues (understandably) from his direct supervisor. In order to find a violation of this policy, the agency must demonstrate that the grievant had specific knowledge of the policy and, that he subsequently deliberately violated the policy. Here, there has not been a showing either of specific knowledge or of deliberate violation. Therefore, it is concluded that the grievant did not refuse to obey instructions. The Written Notice associated with this allegation must be rescinded.
On the other hand, the agency has borne the burden of proof and demonstrated by a preponderance of the evidence that the grievant violated the policy relating to improprieties and fraternization. The evidence is uncontroverted that the grievant was aware of the policies (cited supra) that prohibit improprieties, the appearance of improprieties, fraternization or other non-professional association. The videotape evidence provided by the agency makes it clear that the grievant did shake hands with two different inmates, and hug one of these inmates. He was also seen on another occasion to slap fists together with this inmate in a greeting akin to a handshake. On a third occasion, the grievant permitted the same inmate to utilize a state telephone for a non-emergency reason. Taken together, these actions with an inmate suggest two possibilities. First, the grievant may be far better acquainted with the inmate than he has admitted. The grievant has denied such close acquaintanceship and the Hearing Officer is willing to give the grievant the benefit of the doubt on that issue.
The second possibility is that the grievant's familiarity and relaxed manner in the presence of an inmate about whom he knew little or nothing was indicative of a complete failure to appreciate the seriousness of his position and responsibility in a maximum-security correctional facility. Although the grievant may have been unaware of the details of inmate F's criminal record, he knew that the inmates in this facility were incarcerated for very serious crimes including murder, rape, and other crimes of violence. It should be intuitively clear to any correctional officer in such a maximum-security facility that he must be especially vigilant at all times.
The grievant contends that he did not fraternize with the inmate. Webster's Ninth New Collegiate Dictionary defines fraternization as "1: To associate or mingle as brothers or on fraternal terms, 2: to associate on close terms with members of a hostile group especially when contrary to military orders, to be friendly or amiable."
There can be little doubt after viewing the videotape evidence that the grievant associated or mingled with inmate F as a brother and was certainly friendly and amiable. It was noted by the agency (and correctly so) that a correctional facility must function as a paramilitary organization. As such, the written policies of the agency must be viewed not as suggestions, but as orders in the same manner as military orders. While inmates should not be viewed as the enemy, they must certainly be dealt with as having the potential for becoming hostile should an opportunity present itself. A correctional officer should comport himself in a manner designed to make the inmate perceive that the officer is at all times alert, attentive and prepared to deal with any potential hostility. Inmates should, of course, be treated courteously and humanely but the correctional officer must also conduct himself professionally at all times.
The grievant's familiarity with inmate F was something one would expect to see on the street when one meets a close friend - not someone who he had met on only one occasion eight years earlier. Whether one characterizes the grievant's behavior as fraternization is semantics. The fact is that the grievant's actions were improper and non-professional. Given the unambiguous policy prohibiting such conduct, the Hearing Officer concludes that the grievant did violate Department of Corrections Standard of Conduct 5-10.17.B.18. The grievant has not provided sufficient evidence to mitigate his action.
The Hearing Officer has given serious consideration to the level of discipline imposed in this case. As noted above, the first Written Notice for refusal to obey instructions must be rescinded. Based on the nature of the second infraction, there is no doubt that fraternizing or non-professional relationships between correctional staff and inmates constitute a Group III offense. Such an offense is considered of such a serious nature that a first occurrence should normally warrant removal. In this case, the grievant's non-professional behavior with an inmate was sufficiently serious that the imposition of anything less than discharge would not be consonant with the infraction. The Hearing Officer concurs with the agency's decision to discharge the grievant from employment.
DECISION
The disciplinary action of the agency is modified.
The Group III Written Notice issued on August 2, 2000 for refusal to obey instructions is rescinded and should be expunged from the grievant's personnel file.
The Group III Written Notice issued on August 2, 2000 for fraternization or non-professional relationships with inmates is affirmed. The two-week investigatory suspension and discharge from employment are also affirmed.
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, Esq.
Hearing Officer