Issue: Group I Offense (unsatisfactory job performance); Hearing Date: December 22, 2000; Decision Date: January 18, 2001; Agency Name: Department of Corrections; AHO: Carl Wilson Schmidt, Esq.; Docket No: 5087

Department of Employment Dispute Resolution

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Corrections Case Number 5087

Hearing Date: December 22, 2000
Decision Issued: January 18, 2001

PROCEDURAL HISTORY

On July 10, 2000, Grievant was issued a Group I Written Notice of disciplinary action for:

Inadequate or unsatisfactory job performance. In checking logbooks appropriate and consistent documentation was not found in regards to issuing bedding, clothing, and linens.

On August 1, 2000, Grievant timely filed a grievance to challenge the disciplinary action. The outcome of the Third Resolution Step was not satisfactory to the Grievant and he requested a hearing. On November 20, 2000, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On December 22, 2000, a hearing was held at the Agency's regional office. Upon motion of a party, the Hearing Officer found just cause to grant an extension of the 30 day time frame for issuing the decision because of the conflicting schedules of the parties and reduced number of available dates due to holidays.

APPEARANCES

Grievant (who did not testify)
Captain
Administrative Assistant
Correctional Officer
Lieutenant
Counsel to Grievant
Assistant Warden as Agency representative

ISSUES

Whether Grievant should receive a Group I Written Notice of disciplinary action.

BURDEN OF PROOF

The burden of proof is on the Agency to show by a preponderance of the evidence that its disciplinary action against the Grievant was warranted and appropriate under the circumstances. Grievance Procedure Manual ("GPM") § 5.8. A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

FINDINGS OF FACT

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

The State Board of Corrections requires that "All prisoners, no matter what the location of their incarceration, should be assured a minimum level of care and custody." Board Policy Number 30-1.1. See Department's Exhibit 2. A minimum level of care includes providing inmates with clean bedding, towels, blankets, washcloths, and clothing. Life, Health and Safety Standards for State Correctional Facilities (January 16, 1998). See Department's Exhibit 4. The Facility requires correctional officers to make entries in logbooks reflecting the inmate-related activities taken by the correctional officers during their shifts. Logbooks are organized by date and time of day. Correctional officers working the 3 p.m. to 11 p.m. shift are responsible for recording information about inmate laundry exchanges.

Grievant is a Correctional Sergeant working the 3 p.m. to 11 p.m. shift. He reports to the Lieutenant who in return reports to the Captain. The Captain reports to the Assistant Warden. Grievant's position description requires him to "Supervise the work of corrections officers by monitoring their work to ensure proper policies and procedures are followed …." It also requires him to advise the employees he supervises of new policies and procedures. See Department's Exhibit 1.

Grievant has worked for the Agency for approximately 18 years. An Agency witness described him as a conscientious worker who typically arrives early to work. No evidence of previous disciplinary action against the Grievant was presented.

The Facility managers take very seriously their responsibility to satisfy the standards set by the State Board of Corrections. Once the facility managers identified a potential documentation problem, they actively pursued correcting the problem.

The Administrative Assistant is responsible for making sure the Facility has adequate documentation to show it is in compliance with the DOC minimum standards. She reviews logbooks on a quarterly basis and sometimes makes spot checks to examine the quality of the Facility's documentation. In September 1999, a DOC auditor reviewed the Facility's documentation and suggested to the Administrative Assistant that the Facility should improve its documentation regarding the inmate exchange of towels and washcloths. The auditor said to list specifically each item of clothing being exchanged. Merely saying "exchanged clothing" would be inadequate. The Administrative Assistant continued her review of the documentation in the logbooks and on March 29, 2000 sent an Interoffice Memorandum to the Grievant, the Grievant's supervisor, and a Correctional Sergeant as follows:

WHEN THE BEDDING, CLOTHING AND LINEN'S ARE ISSUED, THIS IS NOT BEING LOGGED APPROPRIATELY. THERE SHOULD BE DOCUMENTATION IN THE LOG BOOKS EVERY DAY FOR THIS AND IT IS NOT.
See Department's Exhibit 8.

The Administrative Assistant spoke with the Grievant regarding her Interoffice Memorandum. The Grievant said he knew documentation was lacking. He said he was not working on some of the days the documentation was missing and that there was a shortage of washcloths and towels preventing their exchange.

On March 29, 2000, the Administrative Assistant sent the Lieutenant an interoffice memorandum stating:

DOCUMENTATION IS NOT BEING LOGGED IN THE LOG BOOKS FOR THE FOLLOWING ITEMS:

1. CLEAN BEDDING - WHICH MEANS PILLOW CASES AND SHEETS THIS SHOULD BE DONE ON A WEEKLY BASIS!

2. TOWELS AND WASHCLOTHS - THIS SHOULD BE DONE TWICE PER WEEK!

I HAVE GONE THROUGH THE LOG BOOKS THAT ARE IN MY OFFICE AND I HAVE GONE INTO THE BACK TODAY AND GONE THROUGH ALL CURRENT LOG BOOKS LOOKING FOR THESE ITEMS. THE ONLY THING I FIND IS WHERE DOCUMENTATION IS WRITTEN AS "CLOTHING EXCHANGED", THIS DOES NOT TELL THE AUDITOR'S ANYTHING. EACH INDIVIDUAL ITEM THAT AN INMATE IS GIVEN MUST BE DOCUMENTED AS THAT ITEM IN THE LOG BOOK.

See Agency's Exhibit 9.

A copy of the memorandum was sent to the Captain but not to the Grievant. After receiving a copy of the Administrative Assistant's memorandum, the Captain immediately sent a memorandum to the Grievant and two other supervisors stating:

Also, when the bedding, clothing and linen are issued, this is not being logged. Compliance with the above is mandatory. Failure to comply will result in some form of corrective action.

See Department's Exhibit 7.

The Captain met with the staff working the 3 p.m. to 11 p.m. shift to explain the contends of the Administrative Assistant's memorandum to the Lieutenant. However, neither the Captain, nor the Lieutenant showed the Administrative Assistant's memorandum to the Grievant. During the meeting, Grievant informed the Captain that the facility was short of clothing and other items. In response to Grievant's concerns, the Captain issued a purchase order to order necessary clothing and linens.

The Lieutenant drafted a memorandum dated April 25, 2000 and presented the memorandum to the Grievant. The memorandum states:

ON APRIL 25, 2000 DURING AN INSPECTION OF A, B, AND C WING COMMANDER'S LOGBOOK, I CORRECTIONS LT. [name] OBSERVED THAT ON CERTAIN LINEN EXCHANGE DAYS THERE WAS NOT EVIDENCE OF PILLOWCASES, TOWELS, OR WASHCLOTHS BEING LOGGED OR EXCHANGED. I ALSO OBSERVED THAT ON CERTAIN DAYS SOME OFFICERS WERE NOT LOGGING EACH SPECIFIC CLOTHING ITEM THAT THEY WERE EXCHANGING. FOR EXAMPLE, BOXERS, T SHIRTS AND SOCKS WERE LOGGED DOWN AS "EXCHANGED CLOTHING". ACCORDING TO AUDIT STANDARDS THIS IS NOT ACCEPTABLE. CORRECTIONS SGT. [Grievant's name] WAS TOLD THAT HE HAD TO CHECK EACH WING COMMANDER'S LOGBOOK ON A CONSISTENT BASIS TO ENSURE THAT THE OFFICERS ARE IN COMPLIANCE WITH THE AUDIT STANDARDS.

On May 1, 2000, the Assistant Warden emailed the Captain to inform him that:

WE HAVE RECEIVED 1000'S OF LINENS (TOWELS AND WASHCLOTHS). [LIEUTENANT] TO FOLLOW-UP WITH [ADMINISTRATIVE ASSISTANT] ON WEEKLY LINEN EXCHANGE. MUST BE DOCUMENTED FOR STANDARDS.

LOG BOOKS SHOULD SHOW FOR EXAMPLE: A-WING
EXCHANGED FOR CLEAN:
LINEN- TOWELS AND WASHCLOTHS.
CLEAN UNDERWEAR- BOXERS, SHORTS AND SOCKS.
CLEAN SHEETS.

Department's Exhibit 11.

In response to the Assistant Warden's email, the Captain informed the Lieutenant that items had arrived. The Assistant Warden's email was not shown to the Grievant.

The Administrative Assistant reviewed the logbooks from April 25 to June 27, 2000 for Tuesdays and Fridays to determine whether the logbooks adequately documented the exchange of towels and washcloths. She prepared a schedule listing the Wing, date, and her conclusion regarding whether there was full, partial, or no documentation. See Department's Exhibit 13. The Administrative Assistant focused her analysis on towels and washcloths (and not on clothing and bedding) because the DOC auditor had stressed his concern about adequately documenting the exchange of towels and washcloths. She presented her conclusions to the Assistant Warden which prompted the Agency to issue a Group I Written Notice to the Grievant.

The Administrative Assistant keeps the logbooks locked in her office after she leaves for the day. The logbooks can be accessed by staff who have obtained a key to her office. She noticed that some of the documentation was written on the logbooks after she had prepared her analysis presented as Department's Exhibit 13. To the extent changes were made, the Agency does not know who made the changes but it does know that the Grievant was not responsible for the alterations.

The Grievant independently reviewed the logbooks for Tuesdays and Fridays from June 2 to June 20, 2000. On June 28, 2000, the Grievant issued Fact Files to correctional officers indicating whether the logbooks contained adequate documentation on the days worked by the correctional officers. See Grievant's Exhibit 2. Fact Files serve to document employee performance.

The Standards of Conduct for the Department of Corrections provides that a Group I offense include "Inadequate or unsatisfactory job performance." A written notice for a Group I offense remains active for two years from the date of issuance. DOC Procedure Number 5-10.15. See Department's Exhibit 14.

CONCLUSIONS OF LAW

Disciplinary action must be supported by sufficient and reliable evidence. The Group I Written Notice specifies that the Grievant is being disciplined because the logbooks did not adequately document the issuance of (1) bedding, (2) clothing, and (3) linens. Whether the Grievant adequately supervised his subordinates depends on what entries were made in the logbooks. The logbooks and testimony about the logbooks address only linens (i.e. towels and washcloths). This creates a flaw in the Agency's case.

(1) Bedding and (2) Clothing

A substantial amount of evidence was presented at the hearing establishing the Grievant's obligation to supervise the documentation of bedding and clothing exchanges. The evidence ranges from discussions with the Grievant to emails sent by the Assistant Warden to the Captain. Although the logbooks show entries relating to bedding and clothing, no testimony was presented showing how and why the logbooks do not adequately document bedding and clothing. Several Agency witnesses gave their opinions that the Grievant failed to supervise documentation of bedding and clothing exchanges. The accuracy of those opinions could not be verified based on the documents presented. The Hearing Officer will not make an independent analysis of whether bedding and clothing exchanges were documented in the absence of the Agency's explanation of its judgment that bedding and clothing exchanges were not adequately documented. Therefore, the evidence is not sufficient to show that the Grievant failed to supervise documentation of the issuance of bedding and clothing to inmates.

(3) Linens

The primary evidence upon which the Agency concludes that the Grievant should be disciplined is documentation of the exchange of towels and washcloths (i.e. linens). The Agency presented copies of the logbooks for Tuesdays and Fridays (the days clean towels and washcloths are supposed to be exchanged) and testimony from the Administrative Assistant regarding what standard she used to evaluate whether the logbooks showed sufficient documentation. The Administrative Assistant believes a logbook entry is adequate documentation if it states words to the effect of "exchanged towels and washcloths." Merely writing towels and washcloths without also stating exchanged does not satisfy the requirement according to the Administrative Assistant.

The Agency places great weight on the judgment of the Administrative Assistant that the exchange of towels and washcloths was not adequately documented. Her judgment, however is not supported by the logbooks. For example, the Administrative Assistant reviewed logbooks for 51 days. She focused solely on the exchange of towels and washcloths. She concluded that there was adequate documentation on 30 days, no documentation on 18 days, and partial documentation on 3 days. In other words, the Administrative Assistant found adequate documentation 59 percent and inadequate documentation 41 percent of the time.

A review of the logbooks shows that of the 51 entries, 41 have adequate documentation, 7 have no documentation and 3 have partial documentation of the exchange of towels and washcloths. In other words, the exchange of towels and washcloths is adequately documented 80 percent and inadequately documented 20 percent of the time.

Adequate documentation exists for several entries for which the Administrative Assistant concluded no documented existed, as follows:

A-Wing:

On June 9, 2000 an entry appears stating: "Exchange T-shirts, boxers, socks, towels, and washcloths."

On June 16, 2000 an entry appears stating: "Exchange towels and washcloths."

B-Wing:

On June 2, 2000 an entry appears stating: "Exchange washcloths, towels, boxers, T-shirts, she[ets], pill[owcases], soc[ks]."

On June 6, 2000 an entry appears stating: "Passing out shirts, socks, boxers, sheets, pillowcases, towels & washcloths."

On June 9, 2000 an entry appears stating: "Exchange towels & washcloths."

On June 23, 2000 an entry appears stating: "Boxers, towels, shirts, T-shirts, washcloths, pillowcases exchanged."

On June 27, 2000 an entry appears stating: "Exchange towels washcloths sheets box[ers] socks."

C-Wing:

On April 25, 2000 an entry appears stating: "ex-change washcloths & towels on C-wing."

On May 16, 2000 an entry appears stating: "given showers B[oxers] T[-shirts] S[ocks] W[ashcloths] T[owels]." (Because of the frequent use of letters to abbreviate other entries in the logbooks, the Hearing Officer believes the letters "T" and "W" used in the May 16th entry were intended and understood to reference towels and washcloths.)

On May 26, 2000 an entry appears stating: "Exchanged towels & washcloths in C wing."

The Agency contends that some of the logbooks were altered after the Administrative Assistant conducted her analysis. This is probably true. The evidence presented to the Hearing Officer, however, consisted of black and white photocopies of the logbooks. It is not possible to determine from the photocopies which entries were forged. In addition, logbooks contain the handwriting of many different correctional officers. It is possible that a correctional officer noticed that an entry made by another officer on his or her shift should be clarified and the officer then contemporaneously added additional information. In short, a detailed analysis of the alleged changes was not presented to the Hearing Officer and, thus, the Hearing Officer must review the logbooks as they were presented into evidence.

Twenty Percent of Days Inadequately Documented.

Given that 20 percent of the logbook dates do not contain adequate documentation, one could argue that the Grievant's performance was unsatisfactory and that the Group I Written Notice should be upheld. This argument is untenable for two reasons. First, the failure of correctional officers to adequately document does not necessarily establish that the Grievant was poorly supervising his subordinates. The evidence showed that the Grievant recognized there was a problem with documentation, reviewed the logbooks, and issued written or verbal instructions to his subordinates. See Grievant's Exhibit 2. It may be the case that the Grievant should have reviewed his subordinate's work sooner than June 28, 2000, but no evidence was presented to support this position. Second, substantial evidence was presented regarding whether shortages of clothing and linens existed from April to July 2000. Although it is not clear when the shortages occurred, it is clear that some shortages did occur and that Grievant was not instructed at any time as to how to reflect in the logbooks instances where shortages occurred. Therefore, the Hearing Officer cannot conclude that the Grievant failed to properly supervise the correctional officers.

Recommendation

Because the Grievant was not called as a witness, it is difficult to assess the depth of his knowledge regarding the need to document bedding, clothing, and linens. The Hearing Officer recommends that the Agency provide the Grievant with a detailed memorandum outlining the standards to be documented and giving examples of what type of documentation is necessary to meet the applicable standards. By giving the Grievant examples of adequate documentation, the Agency may have the opportunity to better measure the Grievant's future performance. The Agency has the sole discretion regarding whether to follow and how to address this recommendation.

DECISION

For the reasons stated herein, the Agency's issuance to the Grievant of a Group I Written Notice of disciplinary action is rescinded. GPM § 5.9(a). The Agency is directed to remove the Written Notice from the Grievant's personnel file in accordance with Department of Corrections Procedures Manual § 5-10.21(A)(4) (June 1, 1999).

APPEAL RIGHTS

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 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.

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.

Judicial Review of Final Hearing 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.

Carl Wilson Schmidt, Esq.
Hearing Officer