Issue: Group II Offense with 1 day suspension (violating safety rules); Hearing Date: November 28, 2000; Decision Date: December 4, 2000; Agency: Department of Corrections; AHO: David J. Latham, Esquire; Docket No: 5076

Department of Employment Dispute Resolution

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Corrections Case Number 5076

Hearing Date: November 28, 2000
Decision Issued: December 4, 2000

APPEARANCES

Grievant
Representative for Agency
One Witness for Grievant

ISSUES

Was the grievant's conduct on July 19, 2000 subject to disciplinary action under Section 5-10.16.B.2 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 August 15, 2000 because the grievant allegedly violated a safety rule where there was not a threat of bodily harm. A disciplinary suspension of one day (August 17, 2000) was imposed in conjunction with the Written Notice. At the second resolution step, the Acting Chief Warden upheld the Written Notice but rescinded the suspension and agreed to award the grievant back pay for the one day she had been suspended. Following denial of any further 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 1997.

The grievant had attended the Academy for Staff Development when first employed by the Department of Corrections. She received the standard training given to all new correctional officers including the full range of firearms training. Firearms training includes instruction on the proper handling, loading, unloading and firing of weapons used by correctional officers. This training included the proper use of two types of 12-gauge shotguns. During the course of her three years of employment, the grievant utilized shotguns on approximately 50 percent of the days she worked. Prior to July 19, 2000 she had never had any problems in handling or using shotguns in the course of her employment.

The routine process in the issuance of weapons at the start of a shift involves the correctional officer obtaining weapons from the armory officer. The receiving officer is required to check the weapon to assure that the safety mechanism is on, then load one shell into the chamber and four shells into the magazine. During the loading and unloading of weapons, the barrel of the weapon is to be pointed down into a clearing barrel ¹. The safety mechanism is to be kept in the "on" position at all times. The safety should never be in the "off" position unless the correctional officer intends to discharge the weapon.

On July 19, 2000, as is normal, the grievant was issued two shotguns from the armory. The correctional officer assigned to the armory first issued a 20" shotgun to the grievant. The grievant loaded that weapon without incident and then obtained the 26" shotgun from the armory officer. When this weapon was handed to her, the grievant observed that the safety mechanism on the shotgun was not in the "on" position. She pushed the safety mechanism into the "on" position and loaded one blank round into the ejection port (chamber) and closed the action to ensure it was locked. She then loaded the remaining four rounds into the magazine tube through the loading port. After loading the fourth round, she placed the shotgun on the shelf of the clearing barrel. As she did so, the weapon discharged.

Because the round was a blank, and because the barrel of the weapon was pointed into the clearing barrel, there was no injury or damage as a result of the discharge. There was no one else in the area during this entire period of time. The armory officer had returned to Master Control after handing the weapon to the grievant. He was not able to observe the grievant either when she loaded the shotgun or when she set it on the shelf of the clearing barrel. The grievant promptly notified the armory officer of what had occurred. The armory officer notified the watch commander about the incident. He then issued a different weapon to the grievant. The armory officer placed the shotgun that had discharged accidentally to the side and marked it not to be used. There is no evidence available as to whether the shotgun was inspected for defects and if so, what the inspection revealed.

The watch commander investigated the incident. He determined that the grievant should be placed on a different assignment rather than in the gun turret. He further directed that the grievant be given retraining in weapons handling. The Assistant Institutional Training Officer, a sergeant with substantial firearm experience, gave the grievant remedial training on July 20, 2000. The sergeant concluded that the grievant was fully aware of all aspects of the safe handling, loading, unloading and firing of weapons.

When the safety mechanism is in the "on" position, it protrudes slightly from the right side of the weapon ². When the grievant placed the shotgun on the clearing barrel shelf, she lay the weapon on its right side. It is possible that doing so could cause the safety to be pushed into the "off" position if the weapon were laid on the hinge of the clearing barrel shelf or anything other than a smooth, flat surface. It is also possible that the grievant could have accidentally brushed the safety button with her hand, or snagged it on her clothing or equipment as she lay the weapon down.

Part of the training given to all correctional officers, including the grievant, is the Firearms Safety Procedures Manual. That Manual includes, inter alia, the following firearms safety rules:

2. TREAT EVERY WEAPON AS IF IT WERE LOADED, DON'T MISHANDLE OR PLAY WITH THE WEAPON!

Don't deviate or get careless, THINK SAFETY FIRST ALWAYS!

There have been two other similar occurrences of weapons being accidentally discharged. In one case, a correctional officer accidentally discharged a weapon while unloading it. That officer was a new officer still within his probationary period. Because employees in a probationary status are not subject to the Standards of Conduct, there were only two options open in that officer's situation. He could have been discharged or he could have been retrained in the proper use of firearms. Because the officer had established a good record, it was determined that it would be most appropriate to give him one day or firearms retraining at the Academy for Staff Development. In the second case, a weapon was discharged in a control room when a correctional sergeant accidentally stumbled or fell causing the weapon he was carrying to discharge when it struck something. The sergeant was given informal counseling rather than any more severe discipline because it was determined that the accident was unforeseen and not attributable to any fault of the sergeant.

The sergeant who gave the remedial training to the grievant on July 20, 2000 stated that in his experience, both in corrections and the military, he has never been aware of a weapon accidentally discharging if the safety was in the "on" position.

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.2 that violating safety rules where there is not a threat of bodily harm constitutes a Group II offense. This same Group II offense provision is promulgated in Section 5-10.16.B.2 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 violated a safety rule where there is not a threat of bodily harm. The preponderance of the evidence showed that the shotgun did not have the safety mechanism in the "on" position at the moment it discharged. The uncontroverted testimony established that the grievant knew and understood that the safety must be left in the "on" position at all times unless the correctional officer intends to discharge the weapon. Therefore, the failure to have the safety "on" was a violation of the safety rule.

In mitigation, the grievant contends that the discharge was accidental. The Hearing Officer finds the grievant's assertion to be credible; the agency has not presented any evidence to the contrary. However, in order for the shotgun to have discharged, it is apparent that the safety was off at the instant of discharge. There are three possible explanations for the fact that the safety was off. First, the safety may have been off when the grievant received the weapon and she never moved it to the "on" position. The grievant has extensive experience and familiarity with this weapon. The Hearing Officer finds it logical that, if the claimant had seen that the safety was off, she certainly would have moved it to the "on" position prior to loading the weapon. In fact, the grievant testified that that is precisely what she did and, in the absence of any contradictory evidence, the Hearing Officer finds her testimony credible.

Second, the possibility exists that the grievant may not have noticed that the safety was off when she received the weapon and that the safety remained off during the loading process. If this occurred, the grievant clearly violated the safety rule that requires her to inspect the weapon and assure that the safety is on prior to initiation of the loading process. The grievant disavows that this happened for the reasons noted in the preceding paragraph. The Hearing Officer concludes that this scenario is possible but unlikely.

The third possibility is that the safety was "on" when the grievant began the loading process but that it was accidentally turned off either during the loading process or when the grievant put the shotgun on the clearing barrel shelf. Thus, it is well within the realm of possibility that the grievant could have accidentally moved the safety to the "off" position when she was loading the blank shell, when she loaded the four rounds into the magazine or when she set the weapon on the shelf. The Hearing Officer concludes that this third possibility is the most probable of the three scenarios and that the grievant unknowingly moved the safety to the "off" position while handling or setting the weapon down.

In summary, while the grievant did not deliberately fire the shotgun, she did accidentally cause the weapon to discharge. This occurred either through oversight (not realizing the safety was off) or through carelessness (careless handling of the shotgun). It is most likely that the grievant inadvertently pushed the safety off either during the loading process or when she placed the shotgun on the clearing barrel shelf. Thus, it was the grievant's inattention to what she was doing that resulted in the accidental discharge of the shotgun.

One of the grievant's major responsibilities when in possession of a shotgun is to assure that the safety is in the "on" position at all times. In this case, the grievant failed to fulfill this responsibility because she did not assure that the safety was "on" at the time she put the shotgun on the shelf of the clearing barrel. Accordingly, the agency has demonstrated, by a preponderance of the evidence, that the grievant did violate a safety rule. The grievant has not demonstrated sufficient mitigation for this violation. Therefore, the grievant's conduct was subject to discipline pursuant to Section 5-10.16.B.2 of the Department of Corrections Procedure Manual.

DECISION

The disciplinary action of the agency is affirmed.

The Group II Written Notice issued on August 15, 2000 will remain in effect. The one-day suspension served on August 17, 2000 is rescinded. The agency is directed to reimburse the grievant for one day's pay previously withheld from her salary for August 17, 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, Esq.
Hearing Officer