In the matter of Department of Corrections Case Number 5221

Hearing Date: June 13, 2001
Decision Issued: June 13, 2001

On March 3, 2001, Grievant was issued a Group II Written Notice of disciplinary action with suspension of one day for:

On March 13, 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 31, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On June 13, 2001, a hearing was held at the Agency’s regional office.

Grievant
Assistant Warden Operations
Correctional Officer Senior

Whether Grievant should receive a Group II Written Notice of disciplinary action with one-day 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.

FINDINGS OF FACT

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 employs Grievant as a Corrections Officer Senior. He has consistently received evaluations rating his work performance as Exceeds Expectations. His evaluations contain comments describing Grievant as "role model", "professional at all times", and "a very hard working officer." No evidence was presented of any previous disciplinary action being taken against Grievant.

Correctional officers handling shotguns must wear a harness. The harness wraps around the officer’s upper body and has a belt hanging from the shoulder. The shotgun also has a belt. The officer is supposed to connect the belt from the harness to the belt on the shotgun so that if the officer were to accidentally drop the shotgun, the gun would not fall into the hands of inmates.

On February 27, 2001, Grievant attended his post and noticed that the harness did not have a belt hanging from the shoulder. He asked his supervisor about what he should do and he was instructed to directly attach the belt on the shotgun to the harness. The shotgun has a "red line" and a "green line" indicating whether the safety is engaged. The color line was worn down such that Grievant could not immediately tell whether the safety was on. He accidentally touched the trigger with his finger and the shotgun discharged. No one was nearby or injured.

Grievant’s case is the fourth accidental weapon discharge at the Facility. In the first case, a correctional officer accidentally discharged a weapon while unloading it. That officer was a new officer still within his probationary period. Because employees in a probationary status are not subject to the Standards of Conduct, there were only two options available to the Agency. The officer could have been terminated or he could have been retrained in the proper use of firearms. Because the officer had established a good record, the Agency decided to give him one day of firearms retraining at the Academy for Staff Development. In the second case, a weapon was discharged in a control room when a correctional sergeant accidentally stumbled or fell causing the weapon he was carrying to discharge when it struck something. The sergeant was given informal counseling rather than any more severe discipline because it was determined that the accident was unforeseen and not attributable to any fault of the sergeant. In the third case, an officer discharged a round into a cleaning barrel while loading the weapon. The officer received a Group II Written Notice with a one-day suspension. Because of mitigating circumstances surrounding the incident, the one-day suspension was later rescinded. (Grievant’s Exhibit 2).

Unacceptable behavior is divided into three types of offenses, according to their severity. Group I offenses are the least severe and Group III offense are the most severe. Department of Corrections Procedure Manual "(DOCPM") § 5-10.13. Group II offenses include acts and behavior such that receiving an additional Group II offense should normally warrant removal. Group II offenses include, "Violating safety rules where there is not a threat of bodily harm." DOCPM § 5-10.16.

Accidentally discharging a shotgun because the safety was not engaged is at least a Group II offense. The Agency’s issuance of a Group II is upheld.

The Hearing Officer may not exceed the corrective action taken by the Agency, but may reduce that action based on mitigating circumstances. Mitigating circumstances include consideration of "the interest of fairness and objectivity" and "an employee’s long service with a history of otherwise satisfactory work performance." DOCPM § 5-10.13(B). The Hearing Officer mitigates the Agency’s corrective action by eliminating the one-day suspension. Mitigating circumstances exist because of Grievant’s good work performance and the absence of any prior disciplinary action against him.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action with one-day suspension is modified to a Group II Written Notice without suspension. 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).

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