DIVISION OF HEARINGS

In the matter of Department of Juvenile Justice Case No. 5141

Hearing Date: April 3, 2001
Decision Issued: April 9, 2001

On December 14, 2000, Grievant was issued a Group II Written Notice of disciplinary action with six days suspension for:

On January 9, 2001, 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 February 15, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On April 3, 2001, 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 difficulty of scheduling a hearing given the conflicting schedules of the parties.

Grievant
Captain
Superintendent Senior
Assistant Superintendent
Security Officer
Institutional Manager
Campus Sergeant
Three Lieutenants
Three Sergeants

Whether Grievant should receive a Group II Written Notice of disciplinary action with suspension.

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.

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

Grievant is employed as a Correctional Sergeant with the Department of Juvenile Justice. Grievant began working at the Facility in January 1999 shortly before it opened. No evidence was presented of any prior disciplinary action taken against Grievant.

On Sunday, November 26, 2000, Grievant was working as the acting Shift Commander when he began his shift at approximately 10 p.m. As Shift Commander, Grievant was the highest-ranking officer at the Facility and he was responsible for the functions of the entire Facility. At approximately midnight, Grievant faced an emergency of a personal nature that did not involve a family member. He felt he had to immediately leave the Facility in order to address the personal emergency. Grievant called the Campus Sergeant who was also working in the Facility. Grievant informed the Campus Sergeant that he would be leaving for a short period of time but did not state why he was leaving. Grievant then left the Facility.

At 5:07 a.m. on Monday morning, Grievant returned to the Facility and asked the Campus Sergeant to replace him as Shift Commander. The Campus Sergeant agreed and assumed the duties of Shift Commander. At 5:09 a.m. on Monday morning, Grievant left the Facility with the Campus Sergeant in command of the Facility and with no other sergeant or other supervisor on duty.

During the time Grievant was absent from the Facility, the juveniles were locked in their cells and were sleeping. The juveniles did not create any disturbances while Grievant was away from the Facility. There was no actual compromise of security.

The procedure Grievant must follow before leaving the Facility is governed by the Facility’s Security Post Order 1. This Post Order requires the Shift Commander to "Maintain post until properly relieved." The Post Order does not define or give examples of the meaning of "properly relieved."

The Agency contends a Shift Commander can be properly relieved of duty and leave the Facility only if he first contacts the Administrator On Duty or similar ranking officer and obtains permission to leave. During Grievant’s shift, these superiors likely would be at home sleeping. The Agency contends this procedure is essential to maintaining security because the absence of the Shift Commander would likely leave only one sergeant to supervise the entire facility.

Grievant contends he was properly relieved when he notified the Campus Sergeant that he was leaving the Facility. He argues he complied with existing practice and, as such, did not violated any Facility policy.

Based on the evidence presented, the Hearing Officer concludes that the Agency did not prove it had a written or oral policy requiring the Shift Commander to leave his post only by first obtaining permission from a superior officer. The Agency’s approach is likely the preferred practice, but it was not mandated by written or oral policy.

Numerous witnesses testified regarding the meaning of "properly relieved." Most of the witnesses testified that the preferred method for a Shift Commander to be relieved is to obtain permission from a superior officer. Several witnesses testified that they were unaware of situations where a Shift Commander left the Facility leaving only a single sergeant in charge. A few other witnesses testified there were instances when this happened. None of the witnesses working as Shift Commanders testified they had been told the only way for a Shift Commander to be relieved from his or her post is with the permission of a superior officer. No evidence was presented that Grievant had been told that Shift Commanders could not leave the Facility without obtaining permission from a superior.

The Hearing Officer concludes that the most credible and reliable testimony was that of the Campus Sergeant. The Campus Sergeant appeared especially comfortable with the truth. The Campus Sergeant testified that there were two ways for a Shift Commander to be properly relieved from an active post: (1) obtain approval from a superior or (2) ask a competent sergeant to assume the Shift Commander’s duties. He was aware of instances in the past where Shift Commanders on the late evening shift would leave the Facility leaving only one sergeant to supervise the entire Facility. The Campus Sergeant also testified that Shift Commanders would sometimes step away from their posts for short periods of time to take meal or other breaks.

At 5:07 a.m. on November 27, 2000, Grievant asked the Campus Sergeant to assume the duties of Shift Commander. The Campus Sergeant agreed and Grievant was properly relieved at 5:09 a.m.

Grievant’s failure to return shortly after leaving at midnight, however, constitutes behavior giving rise to disciplinary action. When Grievant left the Facility at midnight, he did not ask the Campus Sergeant to take over the Shift Commander post. The Campus Sergeant believed Grievant was leaving the Facility for only a short time and would return. Rather than returning to the Facility following a short break, Grievant waited approximately five hours before returning. If a correctional officer had tried to speak with the Shift Commander during that five-hour period, Grievant would not have been available. His absence could have resulted in confusion among his subordinates.

The Department of Human Resource Management’s, Policies and Procedures Manual, Section 1.60(V)(B)(1) provides that, "Abuse of state time, including, for example, unauthorized time away from the work area …" constitutes a Group I offense. By remaining away from the work site for approximately five hours, Grievant abused state time thereby committing a Group I offense.

The Hearing Officer agrees with the Agency that the better practice is for a Shift Commander to notify the ADO or some other superior before leaving the Facility. Had the Agency written this requirement into the Post Order or other policy, the outcome of this case may have been different.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action with a six-day suspension is reduced to a Group I. Because the normal disciplinary action for a Group I offense is issuance of a Written Notice, Grievant’s suspension for six days is rescinded. GPM § 5.9(a)(2). Standards of Conduct, Policy No. 1.60(D)(1)(a). The Agency is directed to provide the Grievant with back pay for the period of suspension less any interim earnings that the employee received during the period of suspension and credit for annual and sick leave that the employee did not otherwise accrue. GPM § 5.9(a)(3). Standards of Conduct, Policy No. 1.60(IX)(B)(2).

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.

Carl Wilson Schmidt, Esq.
Hearing Officer