In the matter of Department of Corrections Case No. 5136

Hearing Date: March 7, 2001
Decision Issued: March 12, 2001

Due to the unavailability of parties and/or their representatives, the hearing could not be docketed until the 28^th day following appointment of the hearing officer.

When the Group I Written Notice was issued, the Assistant Warden recommended that the grievant be transferred. The Warden decided not to transfer the grievant.¹ However, five months later, in February 2001, the grievant was transferred from one facility to the other. During the hearing the Warden explained that the transfer was made primarily for operational needs that developed in February 2001, and was neither retaliatory nor related to the Written Notice. The grievant then withdrew both his objection to the transfer and his request to be transferred back to the first facility.

Grievant
Attorney for Grievant
Chief of Security for Agency
Representative for Agency
Two witnesses for Grievant
Three witnesses for Agency

Did the grievant’s actions on September 13, 2000 warrant disciplinary action under the Standards of Conduct? If so, what was the appropriate level of disciplinary action for the conduct at issue?

The grievant filed a timely appeal from a Group I Written Notice issued on September 25, 2000 for inadequate or unsatisfactory job performance. Following a denial of relief at each resolution step, the Written Notice was upheld. The agency head subsequently qualified the grievance for a hearing.

The Department of Corrections has employed the grievant as a correctional officer for 19 years. He currently holds the rank of corrections sergeant. His most recent annual performance evaluation for the year ending October 31, 2000 rated him as meeting expectations.

Security Post Order Number 2 (Shift Commander)² lists as one of the duties the following:

1. Monitors and/or conducts accurate inmate counts in accordance with written policy. Checks totals with records officer for accuracy. Clears counts within specified time frame.

Institutional Operating Procedure (IOP) 411 explains the counting procedure in considerable detail. The grievant has read and signed an acknowledgement that he had read both the post order and IOP 411. At the end of each shift, the outgoing shift is responsible for conducting the inmate headcount and is required to remain on duty until the count is completed and "clears." If the count doesn’t clear until after the end of the shift, the outgoing staff must remain on duty until the count is cleared. If correctional officers work more than seven minutes beyond the end of their shift, the agency is required to pay overtime for the additional time.

The grievant was working the evening shift from 2:45 p.m. to 11:15 p.m. on September 13, 2000; the day shift ended at 3:15 p.m. His normal assignment is Housing Unit Supervisor; the person in this position is frequently assigned the job of conducting the inmate count. On this particular day, the shift commander designated the grievant to be the Count Officer.³ As Count Officer, the grievant would receive headcounts taken by day shift officers in the various wings and other locations where inmates might be at the time of the count. The grievant was responsible for tabulating the totals and determining whether the headcount matched the previous headcount and the number of inmates supposed to be housed in the institution. On most occasions, the count could be conducted, tabulated and verified within 20 minutes, which would permit the day shift correctional officers to leave on schedule at 3:15 p.m.

Each shift is responsible for taking the inmate headcount at the end of its shift. The grievant had previously been Count Officer dozens of times over several years and had never previously made an error. At 2:55 p.m. on September 13, 2000, the inmate count began and the grievant tabulated the totals given him by several correctional officers. The grievant always performed his initial calculation on a scratch paper before transferring the final figures to the official form known as an Officer’s Count Sheet. When the first count was tabulated, the grievant noted that total appeared correct but that B wing had one extra inmate according to the figures given him. The grievant ordered a second count. The second count produced the same result.

By this time, it was approximately 3:15 p.m. The facility’s Chief of Security called the grievant to ascertain why the count had not yet been cleared. The grievant responded that the count in B wing had one too many people. At that time, the grievant did not notice that the total number of people reported in A wing was not what it should have been. At this point, it was decided to order inmates to return to their assigned cells so that another count could be made under more controlled conditions. This process required additional time to get inmates back to their cells before the count could begin again. When this recount was conducted, the totals balanced and the count was cleared at 3:41 p.m. Because day shift officers had worked 26 minutes beyond the end of their shift, they were entitled to receive overtime pay.

One of the grievant’s witnesses, a correctional officer involved in counting inmates on September 13, 2000, acknowledged that he was the officer who had erroneously counted inmates resulting in the wrong total for the B wing. This officer was neither counseled nor disciplined.

Agency records establish that an inmate count conducted on August 8, 2000 was not cleared until 3:31 p.m. Although this late clearing involved overtime by the day shift, no one was disciplined as a result of this incident. The grievant’s shift commander had miscounted in the past but was not disciplined. So far as any witness for either the agency or the grievant could recall, no correctional officer had ever been disciplined for late counts prior to this incident.

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:

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 Training⁴ 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.

The Department of Corrections (DOC) has promulgated its own Standards of Conduct patterned on the state Standards, but tailored to the unique needs of the Department. Section 5-10.15 of the DOC Standards of Conduct addresses those offenses that 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 example of a Group I offense is inadequate or unsatisfactory performance.⁵

The agency has borne the burden of proof to show, by a preponderance of the evidence, that the grievant failed to recognize the error on his scratch sheet for A wing. Had he recognized this error, it is more likely than not that the inmate count conducted at 2:55 p.m. on September 13, 2000 would have cleared more quickly and, that overtime pay for day shift officers would not have been incurred. The grievant readily acknowledges his failure to recognize the problem. However, while acknowledging that he erred in this situation, the grievant argued, in effect, that the corrective action was disproportionate to the circumstances.

The DHRM Standards of Conduct policy provides that corrective action for unsatisfactory performance requires corrective action, which may be counseling, or disciplinary action (Written Notices). Section VI.C of SOC policy 1.60 states, in pertinent part:

The Standards of Conduct promulgated by the Department of Corrections treats the issue of corrective action in a similar spirit. In the definition section of the policy, corrective action is defined to include both counseling and disciplinary action. Counseling is defined as either an informal discussion between employee and supervisor (which may or may not be documented in a written memorandum) or, an interim evaluation. Section 5-10.11.B states, in pertinent part:

In evaluating the appropriate level of corrective action, one must examine the severity of the situation. Such an examination should include the seriousness of the incident, actual consequences of the incident, the employee’s intent, the employee’s past record, the employee’s longevity, and whether similar corrective action has been taken for other employees in similar situations.

In this case, the agency considered this incident serious because inmate counts are extremely important to the maintenance of security in the institution. However, no inmate was missing; rather there was an incorrect count by one correctional officer and a failure to recognize a tabulation error by the grievant. Thus, the actual consequence of the incident was not serious.⁶ There has been no allegation by the agency that the grievant intentionally failed to recognize the problem; his error was oversight – nothing more, nothing less. The grievant’s past record in conducting inmate counts is without blemish. In all the years he had conducted counts, the grievant never made an error. The grievant has worked for the agency for nearly two decades, with no evidence of any prior substandard performance. The employee who actually miscounted inmates in this case was not given any corrective action. Finally, the uncontroverted evidence established that never before has anyone been given disciplinary action for making an unintentional error in conducting inmate headcounts.

Weighing all of the above factors, the Hearing Officer is unable to reasonably conclude that the grievant’s first, unintentional error after a long and unblemished record of service was so severe that it should warrant disciplinary action. However, keeping in mind the Department of Corrections statement that "it is hoped that most performance and behavior problems can be resolved through a counseling process," it would be reasonable for the grievant’s supervisor to counsel the grievant about the need to carefully check his count tabulations and to document such counseling with a written memorandum.

The disciplinary action of the agency is reversed.

The Group I Written Notice issued to the grievant on September 25, 2000 for inadequate or unsatisfactory performance is VACATED. This Written Notice shall be removed from the grievant’s personnel file and retained by the agency pursuant to Section 5-10.19.B. of the DOC Standards of Conduct.

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 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.

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

¹ The Warden at this particular location oversees two separate facilities that are located adjacent to each other. It is not uncommon to transfer personnel from one facility to the other in order to meet operational needs.
² Exhibit 2.
³ As part of its security procedures, the institution conducts five inmate headcounts per day - at 6:55 a.m., 12:15 p.m., 2:55 p.m., 6:55 p.m. and 10:55 p.m. Because of the need to account for all inmates and maintain the security of the institution, inmate headcounts are considered one of the most important functions at the institution.
⁴ Now known as the Department of Human Resource Management (DHRM).
⁵ Exhibit 8, page 8.
⁶ Although a small amount of overtime may have occurred, this is an indirect consequence of the fact that this count occurred at the end of a shift rather than in mid-shift.