In the matter of Department of Corrections Case Number 5212

Hearing Date: July 10, 2001
Decision Issued: July 19, 2001

On February 13, 2001, Grievant was issued a Group III Written Notice of disciplinary action with removal for:

On March 2, 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 May 21, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On July 10, 2001, a hearing was held at the Agency’s regional office. Upon Grievant’s motion, the Hearing Officer found just cause to extend the 30-day time frame for issuing a decision because of exceptional scheduling circumstances.

Grievant
Grievant’s Counsel
Superintendent
Legal Assistant Advocate
Institutional Safety Specialist
Major
Two Lieutenants
Sergeant
Captain
Three Special Agents
Security
Corrections Officer
Hearings Officer
Corrections Officer Senior
Grievant’s wife

Whether Grievant should receive a Group III Written Notice of disciplinary action with removal.

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:

The Department of Corrections employed Grievant as a Corrections Officer Senior until his removal on February 13, 2001. He had been employed by the Agency for 15 years. Over the past five years including 2000, Grievant’s work performance has exceeded the Agency’s expectations four times.

On January 10, 2001, the Agency’s Institutional Safety Specialist was inspecting mail sent to inmates when he noticed an unusual letter to Inmate R. The letter suggested Inmate R may be planning to escape. At 1:30 p.m., the Institutional Safety Specialist notified the Superintendent. Five minutes later, at the Superintendent’s request, the Captain contacted the corrections officer supervising the farm crew where Inmate R was working and instructed the corrections officer to bring all of the farm crew back into the facility. A few minutes later, Inmate R returned inside the secured facility.

The Major ordered several corrections officers to conduct a search of inmate property located at the farm. Grievant was supervising a road crew of inmates until he returned to the Facility at 2:10 p.m. He joined the corrections officers searching the farm. The Major asked the officers to look for maps, plans, and other evidence of escape but did not identify which inmate was suspected of attempting to escape. Once the search ended at 3:50 p.m., Grievant and the other officers returned to the Facility.

Inmate W worked in the maintenance crew near the farm. He observed Grievant and the other corrections officers searching the farm. He returned to the Facility at 2:59 p.m.

Sometime after 4:00 p.m., Inmate R was escorted from housing unit three to the Major’s office in housing unit one. Inmate R waited outside the Major’s office for a short period of time before being called in for questioning.

The evidence conflicts regarding what Grievant did once he returned from searching the farm. Grievant contends he went on his break from approximately 3:50 p.m. until 4:15 p.m. when he was asked to retrieve Inmate R’s property from a locker in housing unit three. The Agency contends that Grievant went to Inmate R’s housing unit and escorted him to the Major’s office. Both Grievant and the Agency’s witnesses testified credibly regarding this issue. Since the burden of proof is on the Agency, the Hearing Officer must resolve this factual dispute in favor of the Grievant.

While Grievant was walking from housing unit one to housing unit three, Inmate W approached him and stated words to the effect of, "What’s up with Inmate R? Inmate R is not planning an escape. Sometimes people say things they don’t really mean." Grievant responded with words to the effect of, "I don’t know. He must have told on himself over the telephone. There is a big red sign over the phone saying inmate calls are not private." Grievant did not specifically state to Inmate W that corrections staff were investigating an escape or searching for maps or letters involving an escape plot. Grievant knew, however, that Inmate R was the target of the farm search because he had heard other employees discuss this during his break. Following his brief conversation with Inmate W, Grievant proceeded to housing unit three.

Grievant was delayed in his attempt to obtain Inmate R’s property. Grievant had been given an incorrect lock combination to the locker. He sought the assistance of another corrections officer already in the housing unit. They were unsuccessful in opening the lock so they called for someone to bring the master key. After a ten to fifteen minute delay, Grievant was able to open the locker with the master key and take the contents to the Major’s office.

Inmate R went to housing unit one at approximately 4:00 p.m. He waited outside the Major’s office for approximately 20 to 25 minutes before he was called into the Major’s office for questioning which lasted approximately 15 minutes. When he entered he stated words to the effect of, "Why was I brought here. [Grievant] told me you think I am trying to escape. It is not true." Corrections staff continued to interview Inmate R and he continued to deny planning an escape. At approximately 4:40 p.m., corrections staff finished their interview and locked Inmate R in a holding cell in housing unit one. Inmate R was transferred to another facility the next day.

Corrections staff examined Inmate R’s property from his locker and discovered documents suggesting Inmate R intended to escape with another inmate.

Grievant was under a great deal of stress on January 10, 2001. He had been having difficulty sleeping for quite some time. He had been suffering from headaches since 1998 that were so bad he had to obtain a doctor’s excuse to refrain from wearing his corrections officer cap. Adding to Grievant’s stress was the receipt of a Group II Written Notice for failure to follow instructions. Earlier in the morning, while Grievant was supervising an inmate work crew, Grievant failed to wear his hardhat as previously instructed by his supervisor. When Grievant returned to the Facility in the afternoon, he was called into the Superintendent’s office and reprimanded. Rather than going home, he continued to work.

Unacceptable behavior is divided into three types of offenses, according to their severity. 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." Department of Corrections Procedure Manual "(DOCPM") § 5-10.15. Group II offenses "include acts and behavior which are more severe in nature and are such that an additional Group II offense should normally warrant removal." DOCPM § 5-10.16. Group III offenses "include acts and behavior of such a serious nature that a first occurrence should normally warrant removal." DOCPM § 5-10.17.

Corrections officers are expected to "exercise a high level of professional conduct when dealing with inmates … to ensure the security and integrity of the correctional process." DOCPM § 5-22.6. For example, corrections officers "are expected to be alert to detect and prevent escapes from custody or supervision or departmental regulation." DOCPM § 5-22.6(B). They are also expected to "be respectful, polite, and courteous in their conduct with inmates …." DOCPM § 5-22.6(E).

Grievant failed to exercise proper judgment during his brief conversation with Inmate W. By acknowledging to Inmate W that it was possible that Inmate R was in trouble, Grievant allowed Inmate W to "put two and two together" and conclude that Inmate R was the target of the farm search. Although it is not clear how Inmate R learned he was the target of the farm search, it is likely Inmate W went to housing unit one and informed Inmate R while Inmate R was sitting outside the Major’s office waiting to be interviewed.¹ Had Grievant been more alert, he would have said nothing to Inmate W. Grievant’s behavior constitutes a Group III offense.

Corrective action may be reduced based on mitigating circumstances. Mitigating circumstances include: (1) conditions related to an offense that justify a reduction of corrective action in the interest of fairness and objectivity, and (2) consideration of an employee’s long service with a history of otherwise satisfactory work performance. DOCPM § 5-10.13(B).

The Hearing Officer will not terminate Grievant simply because he had one very bad day in his fifteen year career. Grievant’s work performance exceeded the Agency’s expectations for four of the past five years including 2000. He has been a dependable employee for fifteen years. The severity of the headaches and other factors affecting his life obviously affected Grievant’s performance on January 10, 2001. Following his removal, Grievant received help from an ear, nose, and throat specialist who has helped dramatically reduce Grievant’s headaches. When the Agency issued Grievant a Group II Written Notice approximately two hours before the facts giving rise to this grievance, Grievant’s stress level was increased.

The Hearing Officer will reduce the Group III to a Group II Written Notice. Because Grievant now has two Group II Written Notices, the Hearing Officer will award only partial back pay effective June 1, 2001.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with removal is reduced to a Group II Written Notice. The Agency is directed to reinstate Grievant to his former position or, if occupied, to an objectively similar position. The Agency is further directed to provide Grievant with partial back pay from June 1, 2001 less any interim earnings that the employee received and credit for annual and sick leave that the employee did not otherwise accrue from June 1, 2001. GPM § 5.9(a).

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