Issue: Group II Written Notice with susp(fraternization); Hearing Date: January 10, 2001; Decision Date: January 16, 2001; Agency: Department of Corrections; AHO: David J. Latham, Esq.; Case No: 5109

Department of Employment Dispute Resolution

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Corrections Case Number 5109

Hearing Date: January 10, 2001
Decision Issued: January 16, 2001

PROCEDURAL ISSUE

In the attachment to his request for a grievance hearing, the grievant requested removal of the Written Notice and a transfer to a different correctional facility. The Hearing Officer advised the grievant that his authority is limited to addressing the Written Notice only. A Hearing Officer has no authority to effect a transfer of agency employees. Staffing of agency facilities falls within the authority of agency management. The grievant has been advised to pursue a transfer through normal agency procedure by applying at the facility of his choice.

APPEARANCES

Grievant
Representative for Agency
Three witnesses for Agency
One witness for Grievant

ISSUES

Was the grievant's conduct on July 3, 2000 subject to disciplinary action under Department of Corrections Standards of Conduct? 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 for fraternization issued on August 1, 2000 because he had allegedly embraced an inmate. The grievant was suspended without pay from July 8 through July 27, 2000. He was allowed to utilize annual leave in order to have an income source. Subsequently, the agency restored the time taken away during this two and a half week-suspension. Following a denial of relief at each resolution step, the Group II Written Notice was upheld. Subsequently, the agency head qualified the grievance for a hearing.

The Department of Corrections (Hereinafter referred to as "agency") has employed the grievant since 1996. He has been a correctional sergeant since November 1998. Prior to coming to his current facility, the grievant had been a correctional officer at another facility from 1996 to 1998.

On July 3, 2000, the grievant was standing at the entrance to the watch commander's office on the "Boulevard." A group of inmates was leaving the dining hall at the end of a meal and walking down the boulevard. Inmate F was walking at or near the end of this group. As he approached the location where the grievant was standing, he came towards the grievant and extended his hand to shake hands. The grievant and the inmate shook hands with their right hands and each placed his left hand on the shoulder or upper arm of the other. A pleasantry was exchanged and the inmate continued down the hall with the other inmates. The grievant denies hugging or embracing the inmate.

There were three correctional officers who observed this incident. One officer was in the gun turret or catwalk located directly above the grievant. He observed the grievant and inmate shaking hands with their right hands, with their left hands around the other person's back, with their chests close together, in what he characterized as an embrace. This officer felt that the incident "didn't feel right" but he did nothing about it at the time. Two days later he reported his observation to the Chief of Security.

The second officer was located about 50 feet away in or near the dining area. He observed the grievant and inmate shaking hands with their right hands, with their left hands on the shoulder of the other. This officer had seen correctional officers and inmates shake hands in a similar manner on at least five other occasions and had done the same thing himself. He did not consider this incident unusual, took no special notice of it and did not report the incident. The Chief of Security contacted this officer a few days later and requested that he write an incident report of what he had observed. In his report, this officer characterized the encounter as a hug. However, during the hearing he demonstrated what he had observed; his demonstration was not what one would usually call a hug.

The Chief of Security determined from the testimony of these two correctional officers that the grievant's actions were inappropriate and constituted fraternization. Subsequently the Group II Written Notice was issued to the grievant.

The third correctional officer was walking up the boulevard a few feet behind inmate F. He observed the inmate approach the grievant, shake right hands, grasp the upper arm or shoulder of the other, exchange brief words and then the inmate continued down the boulevard. The correctional officer estimates he was about four feet away from the two. He also did not consider the incident unusual and did not report it. He was later interviewed about this incident but was not asked to write an incident report.

Until June 2000, inmate F had been incarcerated at the same facility at which the grievant began his career in 1996. The grievant was aware of inmate F during his tenure at that facility and knew that inmate F had been in the isolation unit. Inmate F is considered a dangerous inmate because of his ability to influence and control other inmates. Upon arrival at the grievant's facility in June 2000, inmate F was assigned to general population. The grievant assumed that his transfer and assignment to general population might have resulted from better behavior by inmate F.

When the grievant was initially trained about fraternization, he was instructed to not permit inmates to come within your own "personal space." He was told that each person has his own definition of the limits of that personal space. Thus, some may feel more comfortable staying three feet away from inmates while others would feel comfortable being closer to an inmate. This comfort level may also vary depending upon the individual inmate involved. The grievant is a tall and big man. He has had karate training, has participated in strike forces¹, received special training for dealing with unruly inmates and feels confident about his ability to deal with any inmate on a physical level. At the same time, the grievant is not overconfident and recognizes that surprises can occur. The grievant was cautious in dealing with inmate F because of his reputation as a dangerous inmate. The grievant also understood from his early on-the-job training that handshakes with inmates are permissible but that a full embrace is not acceptable. He has observed an assistant warden and other management people shaking hands with inmates on 15-20 occasions.

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 Group II offenses include acts and behavior which are more severe in nature (than Group I offenses) and are such that an accumulation of two Group II offenses normally should warrant removal. These same Group II offense provisions are promulgated in Section 5-10.16.B of the Department of Corrections Procedures Manual. Such offenses include, but are not limited to:

10. Fraternization or non-professional relationships with inmates, parolees, or probationers not directly related to Department business.

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).

During the hearing much was made of whether the interaction between the grievant and inmate F constituted an embrace, a hug or was simply a handshake. The Oxford English Dictionary, 2nd edition, defines an embrace as, "The action of folding in the arms, of pressing to the bosom." Webster's II states, "To clasp in the arms; hug," and defines hug as, "To clasp closely; embrace."

All three witnesses agree that the grievant and inmate F were shaking hands with their right hands during the encounter. No witness observed either man putting both arms around the other in a hug or embrace. All three witnesses also agree that, during the handshake, each man placed his left hand on the other man. The placement of the left hand may have been on the upper arm, shoulder or back; there was no consensus as to the precise placement of the left hand. One witness says the two men came close together during the handshake; the other two witnesses state that the two were close enough to shake hands and place left hands on the upper arm or shoulder, but not so close that they considered it an embrace or hug. The grievant states that he shook hands and placed his left hand on the inmate F's shoulder; he denies embracing or hugging him. He states that there was an appropriate distance between him and the inmate.

All who testified at the hearing agreed that a full embrace or hug (with both arms around the other person) would be inappropriate and would reasonably be categorized as fraternization. There also appears to be a general consensus that a handshake between a correctional officer and an inmate is permissible. In this case, it is clear that what occurred was something more than a handshake but something less than an embrace or hug. Whether it was closer to a handshake or closer to an embrace cannot be determined from the varying testimony of the witnesses. No videotape evidence of the encounter was proffered during the hearing.

From the evidence, the Hearing Officer must conclude that an embrace or hug did not occur. Accordingly, the agency has not shown, by a preponderance of the evidence, that fraternization occurred. However, it is equally apparent that the encounter between the grievant and inmate F was improper for two reasons. First, the encounter between the two men was obviously more than a mere handshake. The encounter suggested to one witness that something just didn't seem right. This witness testified credibly that he was troubled about what he had seen and decided that he had to report it. If one witness perceived the incident in this way, then it must be concluded that whatever occurred was sufficient to create the appearance of impropriety. If the appearance of impropriety was created in this officer's mind, it is entirely possible that some inmates could also have perceived the same action as being improper.

Second, the grievant has acknowledged that, "I realize I made a mistake by shaking this inmate's hand…"². Whether the grievant felt his mistake was in the manner of shaking hands or whether he felt it was a mistake to shake this particular inmate's hand is not significant. What is significant is that the grievant has acknowledged that an impropriety did occur.

Department of Corrections (DOC) Procedure 5-22.7 prohibits both improprieties and the appearance of improprieties. The DOC Standards of Conduct do not specifically address improprieties and the appearance of improprieties. However, Section 5-10.15 of the DOC Standards of Conduct provides that Group I offenses include types of behavior least severe in nature but which require correction in the interest of maintaining a productive and well managed work force. One of the examples listed in Group I is inadequate or unsatisfactory work performance.

Because of the potential for serious consequences from this improper action, a level of discipline greater than written counseling is deemed necessary. After due consideration, it is concluded that the grievant's improper action in this case is most closely akin to unsatisfactory work performance.

DECISION

The disciplinary action of the agency is modified.

The Group II Written Notice issued to the grievant on August 1, 2000 is VACATED.

The agency shall prepare a Group I Written Notice, citing as the offense: shaking hands and greeting an inmate in such a manner as to create the appearance of impropriety on July 3, 2000. The grievant shall sign such Written Notice, which shall be retained in his personnel file until July 31, 2002.

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.

David J. Latham, Esq.
Hearing Officer