Issue: Group III Written Notice with Suspension then Termination (refusal to obey instructions which could result in a weakening of security); Hearing Date: May 24, 2001; Decision Date: May 29, 2001; Agency: Department of Corrections: AHO: David J. Latham, Esquire; Case Number: 5180

In the matter of Department of Corrections Case Number 5180

Hearing Date: May 24, 2001
Decision Issued: May 29, 2001

Due to sudden illness of the agency’s legal representative, the originally scheduled hearing date was postponed until her recovery and was redocketed for the 42^nd day following appointment of the hearing officer.

Grievant
Representative for Grievant
One witness for Grievant
Legal Representative for Agency
Warden
Five witnesses for Agency

Did the grievant’s actions on February 7, 2001 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 III Written Notice issued on February 8, 2001 for refusal to obey instructions which could result in a weakening of security by bringing contraband into the facility. He was also suspended for five workdays and subsequently discharged from employment on February 18, 2001. Following failure to resolve the grievance at the third resolution step, the agency head qualified the grievance for a hearing.

The Department of Corrections (hereinafter referred to as agency) has employed the grievant as a correctional officer since 1995. He held the rank of corrections officer senior at the time of discharge.

At the time he was employed, grievant signed a document in which he accepted as a condition of employment that "All employees entering the prison compound are subject to search of their person and belongings."¹ He signed a second condition of employment document that states he could be subject to external searches, frisking, strip search or body cavity search whenever he entered the facility.²

The agency promulgated a division operating procedure (DOP) on the subject of Inmate, Employee and Visitor Searches.³ In November 2000, the facility at which grievant was employed published its own institutional operating procedure (IOP) on the same topic. This procedure provides that only the Warden or Administrative Duty Officer can authorize a strip search, and only when real suspicion exists. "Real Suspicion" is defined in the policy as:

The facility at which grievant was employed is one of only two corrections facilities in the Commonwealth that have been declared totally drug-free and tobacco-free environments. This particular facility has been a substance abuse treatment facility since 1996. In January 1999, the agency made the decision that the facility should also become a smoke-free and tobacco-free environment. This decision was made to facilitate the mission of this facility to help inmates overcome addictions and develop a healthier lifestyle. On March 22, 1999, a memorandum was distributed by the Warden to all employees explaining that the facility would become smoke and tobacco-free by April 1, 2000.

During the 12-month phase in period, tobacco products were phased out. Additional steps were taken to assist employees who smoked to quit their habit. Such steps included smoking cessation classes and the formation of support groups to provide assistance to those desiring to quit. For those unable to quit smoking, the Warden made available transfers to an adjacent correctional facility that still permits smoking. Additional efforts made during the one-year transition period included meetings with employees, notices distributed via e-mail and bulletin boards, assistance from outside community service groups, establishment of buddy systems, providing mints to smokers, the formation of employee committees with members from all shifts, the setting up of a booth in the lobby (through which employees pass twice each workday), posters, video programs and distribution of literature.⁵

The smoke- and tobacco-free policy was formally published on May 1, 2000. On August 24, 2000, the warden sent another memorandum⁶ to all employees which explained that tobacco was designated as contraband⁷ and that bringing any tobacco products into the facility was subject to formal disciplinary action to include suspension and termination of employment. The memo further advised that employee lockers were subject to random search. The use of tobacco products on the institutional premises was banned. The memorandum emphasized that this policy was zero-tolerance. Grievant acknowledged that he was aware of the tobacco-free policy. He also admitted that has smoked for at least two decades and has been unable to quit smoking.

In April 2000, employees of the Division headquarters had visited the facility with a canine trained to detect controlled substances. During the visit, employees were lined up and the canine allowed to approach each employee. The canine "alerted" on the grievant suggesting that it had smelled a controlled substance. The grievant was searched but no controlled substances were found.

In the months leading up to February 2001, there had been a continual problem with inmates acquiring access to cigarettes. Inmates were willing to pay from $10 to $50 for a single cigarette. Management knew that inmates could obtain cigarettes only if they were being smuggled into the facility either by employees or visitors. The institution’s Chief of Security received information from an informant that certain employees were bringing cigarettes into the facility. This information was discussed with the Warden, who authorized strip searches of those named by the informant. At the beginning of the night shift on February 7, 2001, employees filed into the lobby and lined up to be frisked in the shakedown area before entering the compound.⁸ An operations officer then went down the line pretending ⁹ to count employees and pulled certain employees aside, including the grievant. The grievant was sent to the training room down a hallway adjacent to the lobby area.

When grievant opened the door and saw the Chief of Security, grievant gestured with open hands near his groin and said he had to go to the bathroom. As he made this open-handed gesture with both hands, the Chief of Security observed that the grievant was not holding anything. Two people escorted grievant to the restroom and back to the training room. When he entered the training room, the Chief of Security asked whether he had any contraband on his person; the grievant responded in the negative. Grievant was told to sit down. As he did so, the Assistant Warden of Operations (AWO) noted that grievant was holding something in his right hand and asked grievant what he had. Grievant opened his hand, which contained three Newport cigarettes. It was then noticed that there was a bulge in one of the grievant’s socks near his ankle. When asked what was in his sock, grievant pulled a cigarette lighter from the sock.

Because these items constituted contraband, the grievant was suspended the following day and given a Group III Written Notice with recommendation for termination of his employment. The recommendation was subsequently approved and grievant was discharged effective February 18, 2001.

After discovery of the contraband, a strip search of the grievant was conducted. Grievant gave his verbal consent to the Chief of Security prior to the strip search. The training room contains a ceiling-mounted video camera. The camera was turned off during the search and was pointed away from the area in which the grievant was searched. No videotape of the search was created and no one was monitoring or viewing the room through the camera at the time of the search. The grievant did not look at the camera when he was in the training room. He did not ask whether the camera was operating. He does not know of anyone who was monitoring the room through the camera.

The strip searches conducted on February 7, 2001 and during preceding months involved approximately 12 people. In one case, food was found and determined not to be contraband. In another case, a small mirror was found on a female correctional officer and she was counseled as a result of 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.¹⁰The 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.¹¹

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 Training¹² 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 5-10.17 of the DOC Standards of Conduct addresses those offenses that include acts and behavior of such a serious nature that a first occurrence should normally warrant removal. One such Group III offense is "Refusal to obey instructions which could result in a weakening of security."¹³

The agency has borne the burden of proof to demonstrate, by a preponderance of the evidence, that the grievant entered the institution with contraband. Grievant argues that cigarettes are not contraband because they are legal outside the facility. This argument fails because the agency had specifically declared any tobacco products to be contraband on the institution’s grounds. Grievant also contends he did not actually enter the compound with cigarettes. This contention also fails because the policy specifically prohibits tobacco products anywhere in the facility; the administration building is clearly an integral part of the facility.

Grievant argues that he forgot the cigarettes were in his pocket when he entered the facility. Grievant stated that, before leaving home to drive to the facility, he takes several cigarettes out of the pack and puts them in his pocket, intending to smoke half of them on the way to work and half on the trip home. Upon arriving at the facility, he usually removes the remaining cigarettes from his pocket and places them on the visor of his vehicle. He contends that, on February 7, 2001, he was hurrying and forgot to remove the cigarettes from his pocket. He said it has always been his routine to keep his cigarette lighter in his sock.

Grievant also states that, when he entered the training room, he intended to give the cigarettes to the Chief of Security. Based on the weight of the testimony from those present in the training room, it is concluded that the grievant had sufficient time to turn over the cigarettes when he entered the room and as he sat down. His contention that he did not have sufficient time to so is not credible. It appears more likely than not, that grievant intended to conceal the cigarettes in his hand during the strip search in the hope that the contraband would not be discovered. Moreover, when grievant was asked if he had any tobacco products in his possession, both the Chief of Security and the AWO heard grievant respond that he did not. Therefore, the preponderance of evidence supports the conclusion that grievant knowingly entered the facility with contraband and attempted to conceal that fact from his superiors.

Grievant contends that the agency’s discipline is an overreaction for just three cigarettes. No evidence was proffered regarding whether grievant was bringing cigarettes into the facility solely for his own personal use or whether he intended to sell them to inmates. Absent any evidence, the hearing officer will give grievant the benefit of the doubt and assume that the cigarettes were solely for his personal use. However, even if this is the case, uncontroverted testimony of the agency’s witnesses established that even cigarette smoke could be disruptive to inmates who have a craving for a cigarette. The agency’s goal in creating the tobacco-free environment is to eliminate smoke (including second-hand smoke) from the facility. Thus, smoking a cigarette inside the facility is counterproductive to the agency’s objective in creating a tobacco-free institution.

Grievant argues that the strip search was not proper because he did not give written consent. Grievant correctly notes that the condition of employment form he signed in September 1995 provides that strip searches may be performed only if written consent is obtained. However, IOP 443 was issued in November 2000 and superseded the earlier form. Written consent is no longer necessary; the current policy requires only verbal consent.¹⁴ In any case, this issue is a red herring because the strip search occurred after discovery of the contraband. Grievant’s discharge from employment resulted from his carrying contraband into the institution, not from the strip search.

Grievant presented testimony, unrebutted by the agency, that other employees have realized just before going through the shakedown that they had prohibited items in their pockets. They left the line and returned the items to their cars in the parking lot before returning to be frisked. These employees have not been disciplined. Grievant suggests that his situation is similar because he did not intend to take the contraband into the facility. This argument would be attractive if the grievant had immediately offered his cigarettes to the Chief of Security and explained that he forgot to remove them from his pocket. However, grievant denied having any tobacco and then attempted to conceal the cigarettes in his hand until they were discovered. This attempted deception is totally inconsistent with grievant’s assertion that he forgot he had the cigarettes.

There is ample evidence to conclude that grievant committed the offense cited by the agency. Therefore, it is unnecessary to make a credibility decision in this case. However, it is noted that grievant was repeatedly evasive during his cross-examination by the agency. Moreover, his arguments regarding lack of knowledge about the agency’s transition program are simply incredible in light of the one-year program and the daily information disseminated in the facility. The level of discipline and the grievant’s discharge are appropriate given the circumstances and the grievant’s attempted deception.

The disciplinary action of the agency is affirmed.

The Group III Written Notice issued to the grievant on February 8, 2001 for refusal to obey instructions that could result in a weakening of security, and his subsequent discharge on February 18, 2001 are 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.

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