In the matter of Department of Corrections Case No. 5059

Hearing Date : March 6, 2001
Decision Issued: March 9, 2001

This grievance was originally assigned in October 2000 to another hearing officer. That hearing officer had set a date for the hearing but postponed the case for unknown reasons and ultimately withdrew as hearing officer. The case was reassigned to this hearing officer on February 12, 2001 and was promptly docketed for a hearing on March 6, 2001.

The grievant declined to testify during the hearing. An experienced representative represented the grievant. The Hearing Officer advised the grievant that he was free to exercise the option not to testify. However, the Hearing Officer also advised both the grievant and his representative that the Hearing Officer could base his decision only on the evidence submitted during the hearing. If the grievant failed to testify and did not rebut the agency’s evidence, the Hearing Officer might have no choice but to draw inferences that could be unfavorable to the grievant. With this information, the grievant nonetheless made a knowing waiver of his right to testify.

Grievant
Representative for Grievant
Warden
Representative for Agency
One Witness for Grievant
One Witness for Agency

Did the grievant fail to follow a supervisor’s instructions, perform assigned work or otherwise fail to comply with applicable established written policy? If so, what is the appropriate level of discipline pursuant to the Standards of Conduct?

The grievant filed a timely appeal from a Group II Written Notice issued on May 10, 2000 because he failed to follow a supervisor’s instructions. Following failure to resolve the grievance at the third resolution step, the agency head qualified the grievance for a hearing.

The Department of Corrections (hereinafter referred to as agency) has employed the grievant as a corrections officer with the rank of lieutenant for approximately 17 years. He has previously received written counseling for minor performance problems totally unrelated to the incident at issue herein.

The agency has promulgated Institutional Operating Procedure 413 on the subject of Riot Prevention, Lockdown, and Emergencies.¹ Section 413-7.9 states, in pertinent part:

During the operation of this facility, it may become necessary at times to remove any or all inmates from the general population to insure order, or for the protection of inmates, staff, or the public. Lock-downs or removal of inmates from the population is a custodial management function and will be used only as an emergency, preventive or control measure when less restrictive methods are not sufficient under the circumstances. Permission to lockdown an entire institution requires the approval of the Regional Director.

The Warden, or Administrative Duty Officer, upon approval of the Regional Director, or if not available, the Deputy Director, shall have authority to temporarily lock up one, several, or all inmates pending an investigation in situations such as:

5. If circumstances do not allow consultation with the Regional Director or Deputy Director such notification shall be made at the earliest possibility.

Post Order # 2 (Watch Commander)² states in Emergency Procedures:

1. Any emergency situations will be reported immediately to the Chief of Security, Duty Officer, Assistant Warden, or Warden and the Regional Director or his Designee when required. The Watch Commander shall be familiar with all departmental operating procedures, IOPs, instructions, and procedures relating to emergency situations. (Underscoring added)

Post Order # 2 also contains the following specific post duty:

5. The Watch Commander shall be responsible for the gathering of information, notification of appropriate personnel and the drafting of an SIR for all serious incidents per DOP/IOP #421.

On March 23, 2000, the Warden convened a meeting of all key management, administrative and security personnel. All Watch Commanders including the grievant attended that meeting. One of the topics emphasized by the Warden was the reporting of "incidents." The warden had been assigned to this institution only six months earlier and was concerned that not all incidents were being properly recognized, reported and documented. The Warden defined an "incident" as "any unusual event out of the ordinary; they need not be catastrophic events, but must be reported to the employee’s supervisor for documentation purposes."³ Based on the discussion during this meeting, it was clearly understood that any "incident" should be reported. A "lockdown," ⁴ which requires the writing of an incident report falls within the definition of an incident for the purposes of the Warden’s instruction to the staff.

At about 12:15 p.m. on Thursday, April 6, 2000, several inmates in two large cells threw trays containing their lunch into the hall outside the cell. These two cells housed approximately 12-15 inmates in each cell. A sergeant came upon the food and trays shortly thereafter. After yelling at the inmates, the sergeant "locked down" the two cells and reported the incident by telephone to the grievant, who was the designated Watch Commander during that shift. After the grievant approved the lockdown, the sergeant returned to the cells. By that time, two workers, who had been cleaning the hall, had already cleaned up the trays and food. The sergeant wrote up an incident report and the grievant signed the form, affirming the lockdown. The grievant did not report this incident to his supervisor, to the Administrative Duty Officer (ADO) or to anyone else in the chain of command above him. The grievant did not attempt to take pictures and did not attempt to question the inmates or any possible witnesses. The grievant’s shift ended at 2:00 p.m. He only reported the lockdown to the Watch Commander who relieved him at 2:00 p.m.

At approximately 2:00 p.m., as the shifts were changing, the Assistant Warden of Operations (AWO) made a routine tour of the institution. When he encountered the oncoming Watch Commander, the Watch Commander advised the AWO of the lockdown. The AWO asked who had approved the lockdown but the Watch Commander knew only that the grievant had informed him that the lockdown had taken place. The AWO checked with the Warden and with the other assistant warden and ascertained that neither of them had approved or been informed about the lockdown. The AWO then spoke with the grievant by telephone to get the facts. After learning the details, it was determined that the lockdown was appropriate, and that it would be continued for a period of time in an effort to force the inmates to identify the culprits.

During the investigation of this incident by the Assistant Warden of Operations several days later, the grievant wrote a memorandum to the AWO. He contended that he attempted to contact the both Assistant Wardens but was unable to do so. This incident happened at lunchtime on a weekday. The Warden and both Assistant Wardens were working at the institution on that day; all three persons have pagers. These three can also be contacted by telephone and the Warden’s secretary would also know how to reach them if needed. None of the three people were contacted and none received a page. The AWO’s written report of his investigation notes that the grievant said, "he had not called the ADO or anyone else."⁵

In his memorandum, the grievant also acknowledged that he should have interrogated inmates and attempted to take pictures of the incident. He went on to state, "I regret now that I failed to do so."⁶ The grievant further avers that he had asked another lieutenant to inform one of the assistant wardens about the lockdown. However, the grievant neither obtained an affidavit from this witness nor brought him to the hearing to testify in the grievant’s behalf.

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:

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 5-10.16.B.1 of the Department of Corrections Procedures Manual provides that "Failure to follow a supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy" constitutes a Group II offense.

The agency has borne the burden of proof and demonstrated by a preponderance of the evidence,⁷ that the grievant failed to follow a supervisor’s instructions and failed to comply with applicable established written policy. The Warden had clearly and unambiguously instructed the grievant on March 23, 2000 to report all incidents to his supervisor. The grievant failed to report the lockdown to his supervisor or to anyone else in the chain of command. He also failed to follow the instruction in Post Order # 2 that requires him to gather information and notify appropriate personnel.

The burden of proof now shifts to the grievant to demonstrate any mitigating circumstances. Unfortunately, the grievant elected not to testify during his hearing. He thus failed to contradict or rebut any of the testimony and evidence proffered by the agency. As the agency’s evidence was uncontroverted, the Hearing Officer must take as true the evidence submitted by the agency.

As Watch Commander, the grievant clearly had the authority to approve the lockdown based on his assessment of the situation. In fact, the Warden testified that the grievant made the appropriate decision in approving the lockdown. Moreover, the agency subsequently affirmed the decision to lockdown by continuing the lockdown for a significant period of time after the Warden was apprised of the facts. However, the agency acknowledged that it took no issue with the grievant’s decision to initiate the lockdown. Rather, the agency's concern is that the grievant failed to follow through 1) by notifying his supervisor and, 2) by conducting an investigation.

The grievant has contended during the grievance process that he attempted to notify his supervisor. Accepting the grievant’s assertion as true, it is commendable that the grievant made the attempt. However, the fact remains that he did not actually establish contact. It was incumbent upon the grievant to take whatever additional steps were necessary to assure that he did make contact and inform his supervisor. Regarding his failure to investigate the incident, the grievant has already acknowledged in writing that he did not conduct the required investigation, and regrets failing to do so.⁸

The grievant has not presented sufficient evidence to mitigate his failure to follow a supervisor’s instructions or his failure to comply with applicable established written policy. This offense is clearly a Group II offense. The agency’s decision not to impose a suspension was reasonable given the grievant’s length of service.

The disciplinary action of the agency is hereby affirmed.

The Group II Written Notice issued on May 10, 2000 for failure to follow a supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy is upheld. The Written Notice shall be retained in the grievant’s personnel file pursuant to the guidelines contained in Section 5-10.19.A of the DOC Standards of Conduct.

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review – This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of 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 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.

Section 7/2(d) of the Grievance Procedure Manual provides that a hearing officer’s original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

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