In the matter of Department of Corrections’ Case No. 5165

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

Grievant
One witness for Grievant
Representative for Agency
One witness for Agency

Did the grievant’s actions on November 16, 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 December 4, 2000 for unsatisfactory job performance because she twice miscounted inmates which caused delay in the clearing of an institutional inmate count for 50 minutes. 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 (hereinafter referred to as agency) has employed the grievant as a correctional officer for five years. She currently holds the rank of corrections officer senior.

The agency employs the use of inmate counts as an important tool in maintaining the security of the facility. Counts of inmates are taken several times daily to assure that all inmates are accounted for. The taking of counts is considered one of the most important duties of a correctional officer. The grievant is well aware of the importance of this duty. A typical inmate count takes approximately 20 minutes. When miscounts occur, agency policy and practice is to verbally counsel an officer for the first infraction. The supervisor will then document the counseling in writing, give a copy to the employee and place the original in a supervisor’s "fact file," which is maintained in the watch commander’s office. If an employee is later responsible for a second infraction, the practice is to give that employee a Group I Written Notice.

On November 16, 2000, the grievant miscounted nine inmates during the 11:30 a.m. count. Although she correctly counted the total number of people in her area, she erred by recording two of the inmates as being from unit 2 when, in fact, the two inmates were assigned to unit 3. When the grievant’s count was added to all other officers’ counts, the total number of inmates for unit 3 was two people less than were assigned to that unit. This necessitated a recount by all officers at about 12:00 p.m. The grievant made a similar error when she recounted and the total inmate count for units 2 and 3 was still incorrect. The third count, made at about 12:20 p.m., was correct.

The grievant acknowledges that she erred in making the counts and understands that corrective action should be taken. This miscount resulted in the issuance of Group I Written Notices to both the grievant and the fellow officer¹ who checked her counts, and the issuance of written counseling to the sergeant who supervised the building and oversaw the recount process.

On April 21, 2000, the grievant was questioned about an incident involving accountability for two inmates who were found in a location other than where they were expected to be. On this occasion, the grievant was the designated "movement officer" and should have known that they had moved from one area to the other. The lieutenant on the grievant’s shift referred the matter to his superiors for consideration of corrective action. A counseling memorandum was prepared, a copy given to the grievant and the original placed in her fact file.

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.² 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 Training³ 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.

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 the instant case, the incident that precipitated the disciplinary action is not disputed. The grievant acknowledges that she miscounted inmates on November 16, 2000 and she recognizes that some type of corrective action is required for her error. The grievant’s sole dispute is with the agency’s decision to use disciplinary action (Group I Written Notice); she believes she should have received the lesser corrective action of counseling.

Grievant’s position is grounded in the agency’s stated practice of giving counseling for a first occurrence of miscounting and giving a Group I Written Notice only for a second occurrence of miscounting. She avers that she had never previously been counseled for miscounting inmates and did not receive a copy of any written counseling memorandum. She also states that her supervisor’s "fact file" does not contain any counseling memoranda.

The agency contends that the grievant had been counseled for the incident that occurred on April 21, 2000. The agency acknowledges that the counseling memorandum is now missing from the grievant’s fact file⁴. However, the agency offered the sworn testimony of the Associate Warden that he had seen the counseling memorandum in the grievant’s file shortly before he decided to give the grievant a Written Notice. The agency also produced a memorandum dated April 22, 2000 from the lieutenant to his superiors that recommended that corrective action be taken.

The lieutenant who wrote the April 22, 2000 memorandum testified that he prepared a counseling memorandum, gave a copy to the grievant and placed the original in her fact file. The testimony of the lieutenant was, at times, somewhat contradictory. He was unsure of time frames, as well as the date he had given the grievant a counseling memorandum. However, he was certain that he had counseled her about inmate accountability and that he had informally talked with her on several other occasions about the importance of inmate counts and inmate accountability. Therefore, the preponderance of the evidence supports a conclusion that the grievant had been counseled previously for inmate accountability.

The grievant also raised the issue of disparate treatment. Because her fellow officer’s corrective action was reduced from a Written Notice to counseling, the grievant feels she is being unfairly treated. However, as noted above, the agency acted consistent with its policy because the fellow officer had not previously been counseled. Since the grievant had been previously counseled, it was consistent with agency policy to utilize the next higher level of corrective action, i.e., a Group I Written Notice.

In considering whether a Group I Written Notice is the appropriate level of discipline, it must be observed that the grievant does not have any prior Written Notices related to counts. However, it cannot be ignored that the grievant made not just one, but two separate miscounts on November 16, 2000. This makes the incident more serious because the grievant should have been much more alert on the second count to the possibility of error. Moreover, the second miscount delayed the entire process for a longer time than was necessary. Given the prior counseling of the grievant, her discipline was not disparate compared with the corrective action given to the other two officers.

The disciplinary action of the agency is affirmed.

The Group I Written Notice issued to the grievant on December 4, 2000 for unsatisfactory job performance is AFFIRMED. This Written Notice shall be retained in the grievant’s personnel file for the period specified in Section 5-10.19.A of the 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.

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