Civil Service reduces 3 day suspension for untruthfulness

Citing the Department of Correction’s failure to use progressive discipline in suspending a sergeant for 3 days, the Civil Service Commission recently reduced the suspension to 1 day.

Appellant Andrew Burns, a sergeant with the DOC assigned to MCI Souza-Baranowski was investigated by prison officials after they received a complaint that Sgt. Burns had verbally harassed an inmate by using racial slurs. During the investigation by DOC Lieutenant Gatewood, it was determined that there was “no evidence to substantiate the inmate’s allegations that abuse or inappropriate staff conduct had occurred.” However, Lt. Gatewood did determine that Sgt. Burns had been untruthful to investigators. Lt. Gatewood did not write a conclusion in regard to the verbal harassment in his report.

The DOC then brought charges against Sgt. Burns for untruthfulness and verbal harassment of the inmate.

The essential facts of the case taken directly from the decision are as follows (the inmates name has been removed by the Commission and does not appear in the decision):

At the time of the incident on March 16, 2005, the Appellant had been a sergeant for three (3) years.

He had no previous record of discipline.

On March 16, 2005, the Appellant was working the 3 pm to 11 pm shift in the Special Management Unit (SPU). Due to a medical emergency around 4:30 pm, an inmate was removed from his cell to the Health Services Unit (HSU). The inmate later alleged that there was misconduct and physical abuse by the correction officers during the move. The inmate alleged that the Appellant called him racial slurs.

The Appellant wrote three disciplinary reports against the inmate for conduct that occurred just before or during his transport from the SPU to the HSU.

Lieutenant Stephen Gatewood (hereinafter “Gatewood”) was assigned to investigate the inmate’s allegations. He interviewed the inmate on May 6, 2005. He interviewed two other inmates thought to be witnesses on May 11, 2005. He later interviewed correction officers Scott Fisher, Ryan Marriott, Craig Daniels, Scott Lynde, Paul Ahern, Mark Ellia, Brian Boisse, William Descroches, Todd Smith, Richard Peterson, William Boggs, Timothy Raimond, Anthony Pacheco, and Christopher Wajda; Lieutenant Donald Ferrara; Sergeants Peter Peladeau, Timothy Crowley, and John Hennessey; mental health clinician Cristyn DeMerchant; and nurses Lori Watson and Joyce Murphy.

None of those interviewed saw or heard racial slurs being used. None of them saw anyone physically abuse the inmate. Gatewood found that the interviewees were credible, and that the inmate’s allegations had no merit.

Videotape surveillance showed that the Appellant had left his position to go to the HSU trauma room at 10:24:27 pm. He went directly to the inmate’s cell where he remained for

eighteen (18) seconds. He left HSU at 10:25:14 pm for a total of 47 seconds.

When questioned about the abandonment of his post, the Appellant said that he had to leave in order to return a gurney to the HSU at approximately 10:24 pm. The video surveillance did not show the Appellant with a gurney at the relevant time.

When showed the videotape, the Appellant then stated that the gurney was placed just

outside the door and that he was going to let the HSU staff know that it was back. When asked why he was speaking to the inmate, he said, “to see what was going on, I said

hey []2 how you doing? That was the extent of my conversation, as a matter of fact []3said to me something along the lines of Saint Patrick’s Day, I kind of thought it was funny. I walked over and told the staff what was going on.”

When informed that it was not apparent from the video that he was talking to the HSU staff, the Appellant said, “I was talking to staff the whole time I was in there.” When asked why he would go to the inmate’s cell if he had so many prior issues with him, the Appellant could not provide an explanation. Although he admitted that he told the inmate, “I’ll have a beer for you,” he emphatically denied making inappropriate comments to the inmate during this encounter.

Gatewood concluded that while there was no evidence to substantiate the inmate’s allegations that abuse or inappropriate staff conduct had occurred, the Appellant was not forthright when he claimed that he reported to the HSU to return a gurney.

He did not write a conclusion in regard to the verbal harassment in his report. However, when the DOC initiated disciplinary action against the Appellant, it included both the allegations of the verbal harassment and the lack of truthfulness.

On September 21, 2005, the DOC issued a notice of hearing for April 13, 2006. James S. Santoro, the Labor Relations Advisor, presided over the disciplinary hearing on

April 13, 2006. The issues were (1) whether the Appellant had verbally harassed an inmate in violation of Rule 8(a), and (2) whether the Appellant had been less than truthful when questioned about the incident in violation of Rule 19(c).

19. The Rules are as follows:

Rule 8(a) Relations with inmates may be twofold, that of counselor and disciplinarian simultaneously, which will require your utmost tact and diplomacy. For those employees having job responsibilities which require inmate contact, your attitude toward inmates should be friendly not familiar, firm not harsh, vigilant not unduly suspicious, strict not unjust. Your leadership ability may be enhanced by the professional image you project.

Rule 19(c) Since the sphere of activity within an institution or the Department of Correction may on occasion encompass incidents that require thorough investigation and inquiry, you must respond fully and promptly to any questions or interrogatories relative to the conduct of an inmate, a visitor, another employee or yourself. Pending investigation into the circumstances and your possible involvement therein, you may be detached from active duty forthwith, however, without prejudice and without loss of pay.

Gatewood testified that the Appellant’s statement to the inmate was not a very tactful or

diplomatic comment to make to someone who is incarcerated and cannot have a beer even if he wished to do so. He also testified that the Appellant had no legitimate reason to vacate his assigned post and go to the HSU, and that his statements as to why he did so lacked credibility.

The DOC informed the Appellant of its decision in a letter dated May 1, 2006. The DOC found that the Appellant had verbally harassed the inmate in violation of Rule 8(a) and that he had been less than truthful about his reasons for going to the HSU in violation of Rule 19(c).

The Appellant was suspended for three (3) days for violating Rules 8(a) and 19(c).

On June 2, 2006, the Appellant filed an appeal with the Commission.

The relevant conclusion stated the following (taken directly from the decision):

The issue before the Commission is “not whether it would have acted as the appointing authority had acted, but whether, on the facts found by the commission, there was reasonable justification for the action taken by the appointing authority in the circumstances found by the commission to have existed when the appointing authority made its decision.” Watertown v. Arria at 334. See Commissioners of Civ. Serv. v. Municipal Ct. of Boston, 369 Mass. 84, 86 (1975) and Leominster v. Stratton at 727-728.

The Appointing Authority was reasonably justified in disciplining the Appellant. The Appointing Authority’s decision to discipline the Appellant was supported by adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind; guided by common sense and by correct rules of law. See Leominster v. Stratton at 728.

After the inmate filed allegations of the correction officers’ behavior in regard to his move to the HSU on March 15, 2005, DOC launched an investigation headed up by Gatewood. Gatewood interviewed most of the correction officers on the 3 pm to 11 pm shift that night, in addition to the medical staff. What emerged was that the inmate’s statements in regard to physical abuse and racial slurs were not credible, but that the Appellant had left his post at some point to walk over to the HSU for no legitimate purpose. While engaged in that lack of purpose, he made inappropriate comments to the inmate. During the course of the investigation, he stated that he had left his post to retrieve a gurney. However, videotaped surveillance of the relevant locations at relevant times did not show the Appellant with a gurney at any time.

Evidence suggests that the inmate was not a model prisoner. During the DOC investigation, a witness stated that the inmate chronically complained about the staff on the 3 pm to 11 pm shift, but never identified staff members. Whatever the inmate’s conduct may have been, there was no excuse for the Appellant’s behavior. Correction officers’ behavior must portray maturity and professionalism at all times, as governed by the Blue Book rules and the culture of the institution. Rule 8(a) states, “Your leadership ability may be enhanced by the professional image you project.” Violations of the rules and regulations not only decrease the inmates’ regard for the corrections officers and their ability to lead in the facility, but risk the safety and morale of the inmates. Taunting an incarcerated man with the mirage of a beer does not fall under the rubric of “utmost tact and diplomacy” in correction officer/inmate relations.

The Appellant compounded this error by lying more than once during the investigation. On at least two occasions, he had the opportunity to state what had actually taken place. In violation of Rule 19 (c), the Appellant failed to “respond fully and promptly to any questions or interrogatories relative to the conduct of an inmate, a visitor, another employee or yourself.” The Appellant’s lack of truthfulness is a serious matter, and could have hampered Gatewood’s attempt to get at the bottom of the inmate’s allegations. In the working environment of a correctional facility, correction officers’ veracity is depended upon to protect the health and safety of everyone on the premises.

For all the above reasons, the Appointing Authority has demonstrated by a preponderance of the evidence that there was reasonable justification to discipline the Appellant.

However, the Commission finds that progressive discipline was not employed in this matter.

Although reasonable justification for discipline exists, this is the first instance of discipline in the Appellant’s then six (6) history with the DOC. The Commission finds that the Appellant’s behavior did not warrant a three (3) day suspension in the absence of previous violations of DOC rules and regulations.

The Commission hereby reduces the three (3) suspension to one (1) day.

The Appellant’s appeal filed under Docket No. D-06-121 is hereby allowed in part.

*some citations and footnotes were removed from the decision. The full text of the decision can be found here: Andrew Burns v. Department of Correction

About Attorney John J. MacLaughlan

John MacLaughlan is Massachusetts licensed attorney as well as a Boston police officer. John is currently assigned to the Youth Violence Strike Force (Gang Unit). He is a graduate of the Massachusetts School of Law with a concentration in Labor Law. He holds a Master’s Degree in Criminal Justice from the University of Massachusetts at Lowell as well as a Bachelors Degree in Political Science from the University of Massachusetts at Amherst. John has taught Defensive Tactics, Firearms, Use of Force, Applied Patrol Procedures, and Police Response to Active Shooters to sworn police officers and police academy recruits. Prior to becoming a Boston Police Officer, John served for 9 years as a police officer in Lowell, where he was a member of the Police Dive Team and Patrol Rifle Team.
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