Arbitrator finds poor performance, not dishonesty; overturns discipline of correctional officers.

   Arbitrator Michael Cavanaugh has issued an award sustaining, in large part, grievances filed by  correctional officers (CO) employed by the State of Washington's Department of Corrections. Three COs  had been dismissed and one, a shift sergeant, demoted, following an investigation of their job conduct during the time leading up to and following the killing of another corrections officer by a prisoner.

Background

   CO Jayme Biendl was killed by an inmate in the prison chapel.  The death was investigated by several agencies, including the local police department. After the criminal investigation was concluded, the DOC conducted “just cause” investigations into seven employees concerning their compliance with DOC expectations. In at least three cases, issues also arose concerning allegedly “inaccurate and/or false statements” made during the investigation. As a result of the investigation three COs were terminated, and a fourth, the shift sergeant, was demoted.  The reasons for the disciplinary action included claims that they had provided false or inconsistent information,  failed to follow Department policy, and, in the case of the sergeant, failed to properly supervise one of the other grievants and failure to comply with directions concerning that supervision.  Because of the overlapping evidence the four cases were tried together.

Standard of Proof

Arbitrator Cavanaugh first addressed the appropriate burden of proof to be used in deciding the cases. He rejected the Union’s position that “proof beyond a reasonable doubt” should be used. He noted that this standard is applicable almost exclusively in criminal cases, and while the consequences of termination of employment are severe, they do not rise to the level of loss of physical liberty and loss of civil rights involved in conviction of a crime. Instead, Arbitrator Cavanaugh concluded that the Department of Corrections should be required to adduce “convincing” proof, noting:

…the potential stigma attaching to the discharge of a corrections employee, particularly a discharge based on alleged dishonesty, justifies a level of proof well beyond the barest preponderance of the evidence. That is, in the law enforcement and corrections context, proven dishonesty can lead not only to the loss of a job, but the loss of a career. Most corrections employers, like the Department, rightly demand “unfailing honesty,” and once having been found guilty of dishonesty, a corrections officer stands very little chance of ever being hired by another agency. Consequently, I will look for proof that convinces me that it is substantially more likely than not that a Grievant committed the offense(s) charged.

Dishonesty/Intentional Falsification

   Three of the corrections officers involved were alleged to have made incorrect log entries, false certifications, or revisions to their statements concerning their conduct on the night in issue.   The Arbitrator rejected virtually all of these charges as a basis for termination. Observing that “allegations of dishonesty in corrections, at least when cited as justification for summary discharge, must be established with the clearest proof,” the Arbitrator found insufficient evidence to support a finding of willful dishonesty or deception. Noting that some of the entries and statements may have been inaccurate, the Arbitrator found  “ [i]n the absence of convincing evidence that an employee stood to gain in some way from providing inaccurate information, explanations such as honest mistake, sloppiness, or lack of attention to detail become just as likely as dishonesty, and perhaps even more so.” These types of offenses, according to the Arbitrator, are more typically addressed through corrective action and progressive discipline rather than summary termination.

Violation of Rules

  It was essentially undisputed that at least some of the grievants failed to follow the prison’s written rules or policies. However, Arbitrator Cavanaugh noted that “for discipline purposes (and particularly for summary discharge) the 'rules' are not necessarily what is written down, but rather what supervisors consistently allow employees to 'get away with'.” Finding grievants’ conduct consistent with what they had previously done without correction or discipline, the Arbitrator found this an insufficient basis for termination.

Poor Supervision

Finally, Arbitrator Cavanaugh overturned the demotion of the shift sergeant, rejecting the DOC’s assertion that he had willfully or deliberately refused to comply with a directive to take action concerning the failure of a CO under his supervision to adhere to proper procedure. Concluding the sergeant’s conduct demonstrated a level of substandard performance, and was  part of a pattern of institutional complacency, the Arbitrator concluded that this conduct was more appropriately addressed through corrective action rather than termination. He reversed the termination but did find just cause for a written reprimand for the sergeant’s failure to address the subordinate’s performance as directed.

Arbitrator Cavanaugh's award can be found here. The DOC’s response to the Arbitrator’s award can be found here.