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Title: Correctional Officer County of San Benito and County of San Benito Sheriff Department
Date: August 4, 1999
Arbitrator: Allen Pool
Citation: 1999 NAC 122

COUNTY OF SAN BENITO

 

BOARD OF SUPERVISORS

 

In the Matter of the Appeal of                           )

                                                                        )

BELINDA SCATTINI, Correctional                 )

Officer, County of San Benito                            )

                                    Appellant or                 )

                                    Grievant                       )            FINDINGS, CONCLUSIONS AND

                        and                                          )

                                                                        )                       RECOMMENDATONS

COUNTY OF SAN BENITO, Sheriff’s            )

Department                                                      )                                   OF THE

                                    Respondent or             )

                                    Department                 )                       HEARING OFFICER

                                                                        )

Re:            Propriety of Termination of             )

            Employment                                         )

____________________________________)

 

 

                                                                                                C. ALLEN POOL

                                                                                                Hearing Officer

                                                                                                P.O. Box 2591

                                                                                                Monterey, Calif. 93942

                                                                                                (831) 372-4138

 

 

 

DATE:  August 4, 1999

            This matter arose under Rule No. 9 of the County’s Personnel Policies and Procedures Handbook governing discipline of County employees.  Pursuant to Rule No. 9, K, 2), C. ALLEN POOL was selected from a panel provided by the California State Mediation & Conciliation Service to serve as the Board of Supervisors’ designate, hereafter referred to as the Hearing

Officer, to hear the appeal of the terminated employee, Ms. Scattini.  The matter was heard by the Hearing Officer in lieu of a hearing before the full Board of Supervisors and this decision by the Hearing Officer constitutes a recommendation to the Board of Supervisors.

            The hearing was conducted on June 23 and 25, 1999 in the County Administration Building in Hollister at which time both parties had the opportunity to examine and cross- examine witnesses and to present relevant evidence.  The parties stipulated that the matter was properly before the Hearing Officer and that there were no outstanding procedural issues in the matter.  A written transcript was made of the hearing and both parties argued the matter orally at the conclusion of the hearing.

 

 

APPEARANCES BY COUNSEL

 

For the Appellant:                                                         For the Department:

 

Louis D. Silver, Esq.                                                     William L. Marder, Esq.

Silver, Katz & Hurley                                                  Deputy County Counsel

Attorneys at Law                                                     County of San Benito

941 West Hedding Street                                     481 Fourth Street

San Jose, CA 95126                                                  Hollister, CA 95023

 

 

 

THE STUPULATED ISSUE

 

            Did the County, the Sheriff’s Department have just cause to terminate Belinda Scattini’s employment?  If not, what should be the appropriate remedy?

 

 

RELEVANT PROVISIONS OF THE COUNTY’S

 DISCIPLINARY PROCEDURES, RULE 9

 

 

A:   Policy:

 

1)   The County’s policy on disciplinary actions is founded on the premise that the actions are to corrective rather than punitive, and any disciplinary actions should reinforce and shape employee behavior in the reasonable and necessary direction for actualizing the County’s goals.

2)   The tenure of every employee in the County service shall be based on reasonable standards of personal conduct and job performance.  Failure to meet such standards shall be grounds for appropriate disciplinary action, which shall be commensurate with the seriousness of the offense and with due consideration of the employee’s prior performance record.

3)      Supervisors shall apply necessary and appropriate disciplinary action whenever an employee fails to meet the required standards of conduct or performance.

4)   Disciplinary actions should be progressively more severe; however, the response for certain first-time serious offenses may not be the action usually prescribed as an initial step in the normal progressive discipline process, but may include any action up to and including termination. A serious offense may call for immediate suspension pending further investigation.

 

C.  Basis for Disciplinary Actions: All discipline must be for cause.  Disciplinary action may be necessary due to employment-related problems, including but not limited to:

 

2)      Incompetency

3)   Inexcusable neglect of duty

5)   Dishonesty

17) Intentional violation of any provisions of these Rules, Memoranda of Understanding, or departmental rules and regulations.  (Items 2, 3, 5 and 17 were cited by the Sheriff’s Department grounds for the termination.)

 

D.  Types of Discipline: The following procedures shall be followed when, in the judgment of the authorized individual, an employee has committed an act or omission that justifies the disciplinary action indicated

      Disciplinary actions may include oral reprimand, written reprimand, suspension without pay, demotion, or any other action deemed appropriate in the circumstances up to and including formal discharge.  A typical progressive sequence of disciplinary actions used the County is :

 

1)   Oral reprimand

2)   Written Reprimand

3)            Suspension, Demotion, Termination

 

E.      Suspension: The department head may suspend an employee from his or her position, with or without pay, for disciplinary reasons, or for investigation of extraordinary circumstances.  Employees suspended from County service without pay shall forfeit all rights, privileges, and benefits earned during the suspension period with the exception of insurance benefits.  Employees suspended with pay shall forfeit all rights and privileges, but shall receive the benefits earned during the suspension.

K.  Appeals from Disciplinary Action: Only permanent employees shall have the right of appeal from disciplinary action. These employees may file a written appeal from disciplinary actions involving suspension, demotion, or termination within  ………

 

2)   The Board of Supervisors, or their designate, will hear the appeal with thirty (30 days of receipt by the Personnel Officer.  The hearing shall be private, unless the employee requests a public hearing.  General rules of evidence shall apply.  The hearing need not be conducted according to the technical rules of evidence.  The employee may be represented by an attorney or other person of their choice.  The Board shall render its decision in writing.

 

 

FACTUAL BACKGROUND

            The events which led to Ms. Scattini’s termination as an employee of the County’s Sheriff’s Department began on Thanksgiving day, November 27, 1998.  On that day, two inmates of the County’s Correctional Facility (Jail) and Correctional Officer Scattini made a wager on the outcome of the professional football game between the Minnesota Vikings and another team, the name of which no one seemed to recall at the hearing.  She wagered $10.00 with each inmate and her chosen team prevailed. 

The following Monday, November 30th, the two inmates came to the counter where she was working and gave her the money lost in the wager.  Sgt. Sue Dickerson saw Ms. Scattini receive the money.  Sgt. Dickerson did not report the incident.  She testified that she did not believe anything was seriously wrong at the time.  For her failure to report the incident, Sheriff Custis Hill took action to discipline Sgt. Dickerson with a suspension.  Sheriff Hill subsequently reduced her suspension to a written reprimand.

Lt. Pat Turturici, Jail Commander, learned of Ms. Scattini’s bet with the two inmates in a memo dated Dec. 3rd, 1998 from Correctional Officer Landeros.  He reported to Lt. Turturici that an inmate told him he had lost a bet to “Scattini” on the football game and “paid her $10.00 because I lost”.  Officer Landeros was acting Watch Commander on Dec. 3rd and reported the information to his supervisor, Lt. Turturici. (Appellant Ex. No. 1)

On December 9th, 1998, Lt. Turturici advised Ms. Scattini that he was going to open an Internal Affairs Investigation concerning the allegation of gambling with inmates and would be calling her in for an interview.  Following the notice by Lt. Turturici that an Internal Affairs Investigation would be forthcoming, and on the same day, Ms. Scattini returned the money (a total of $20.00) to the two inmates.  The evidence record is clear that the decision to return the money won in the bet with the two inmates was hers and hers alone.  Lt. Turturici neither suggested that she return the money or did he order her to return the money.

Lt. Turturici conducted his Internal Affairs interview with Ms. Scattini on Dec. 11th.  Present and with her during the interview was Louis Silver, Attorney at Law. During the interview, Lt. Turturici not only questioned Ms. Scattini about the gambling issue, he also questioned her about an incident which had occurred in the jail on the night of October 13, 1998, two months prior.  Until the interview commenced, she had no knowledge that the October 13th incident would also be a subject of the Internal Affairs Investigation.

There is no verbatim transcript of the interview conducted on Dec. 11th.  Lt. Turturici recorded the interview on tape but did not have the tape transcribed.  In lieu of a verbatim transcript of the tape, Lt. Turturici put together his own summarized version of selected portions of what was recorded on the tape.  He testified that he never thought to have a transcript of the tape made.  He also testified that he prepared the summary while not listening to the tape (Trans. pp 342-48).

With respect to the gambling question and as taken from his summarized version of the interview, Lt. Turturici asked Ms. Scattini if she had bet on a football game with inmates at the jail.  She replied, “Yes”.  He then asked her with whom she made the bets.  Ms. Scattini answered by naming inmates Brent Texeira and Martin Mora.  These were both truthful answers acknowledging she had made bets with the two inmates.  The next series of questions put to Ms. Scattini by Lt. Turturici were how the wagers came to take place, the amount of the wagers, when and how the inmates paid their bets, and if she returned the money.  Her answers to these questions were also truthful.  However, when Lt. Turturici continued in his questioning wanting to know when she returned the money, Ms. Scattini was less than truthful not as cooperative as she should have been.  When first asked by Lt. Turturici when she returned the money, she answered, “I returned it.”  When asked a second time, she answered “about a week ago.”  When asked a third time she answered, “a few days ago”, “I returned it.”  In fact, she did not give a direct answer to the question of when she returned the money won in the wagers.  To paraphrase Sheriff Hill from his testimony, “she danced around the question” (Trans. pp 255-256).  To quote Lt. Turturici, "I felt she was lying" (Appellant Ex. 1).

It should be noted though that Lt. Turturici, at the time of interview, had no need to know when Ms. Scattini returned the money.  He already knew the answer!  He knew that after she was informed by him on Dec. 9th that an Internal Affairs Investigation was going to be conducted and that she would be questioned, she returned the money that same afternoon at about 2:20 PM.  He had talked with Officer Bobby Sanchez who was present the afternoon Dec. 9th in Central Control when she came in and took some money from her purse and commented to Officer Sanchez, “I guess I got to give them their money back”.  Lt. Turturici had also talked with the two inmates, Texeira and Mora, the day before, Dec. 10th.  They informed him that Ms. Scattini had returned the money to them on Dec. 9th in an envelope.  Inmate Texeira told Lt. Turturici that his envelope also contained a note, along with the money, from Ms. Scattini.  The note (County Ex. No. 4) read:

Brent & Martin

            Hey – that bet we had as far as you know – it was just a friendly bet – here’s your 10 spot back –Guess Sgt. Dickerson blabbed back to Lt. Pat and now they are trying to nail me big time on it!  Oh well, it was fun anyway.  Tell Martin Mora too!  Here is your $ back in your property!  It’s not legal to bet!

Keep cool ----

Lynn Scattini                                    Please destroy this after reading!”

Lt. Turturici concluded from the above that Ms. Scattini had lied to him during the investigation: “She had the money all along since approx. the week of Thanksgiving” (Appellant Ex. No. 1, p 2-3) 

The second subject matter of the Internal Affairs interview concerned an incident in the jail on the night of October 13, 1998.  The story, however,  actually began a couple or a few nights prior when Ms. Scattini was on duty in the Central Control Room.  The mother of Inmate Letisha Hernandez appeared outside the facility with a sack of items for her daughter sometime between 10:00 PM and midnight.  Ms. Scattini testified that since she could not leave the Central Control Room (referred to as the “Bubble”) she told Ms. Hernandez, the Mother, to leave the sack on the bench just inside the gate.  She further testified that the area was vacant at that time of night and felt the items would be secure.  About 15 minutes later, Ms. Scattini retrieved the sack from the bench.  On inspection, she found that the sack contained an unopened carton of cigarettes along with a few personnel items such as a pencil, etc.  Since Inmate Hernandez did not have a box in which to put the cigarettes,  Ms. Scattini talked with Inmate Hernandez and Hernandez asked Ms. Scattini to put the carton in Inmate Tracy Billups Work Crew Box.  Inmate Billups had access to the contents of her Work Crew Box whenever she was away from the facility as part of a work crew working with CALTRANS or another such agency.

Subsequently, on the night of Oct. 13th, the two female inmates got into a verbal shouting match about cigarettes.  Along with their shouting was some banging in at least one of the cells.  The two females were in separate cells and were also in separate pods. 

On duty that night with Ms. Scattini were Correctional Officer Beth Dudzik, who was in the Central Control Room (the Bubble) and the Watch Commander Sgt. Darryl Swope.  Sgt. Swope was in the Booking Room when the incident began.

Ms. Scattini, on hearing the verbal fuss and the banging and knowing the two inmates, spoke to the two women separately.  Believing she could quell the matter by getting the two women to talk the matter over, with herself serving as a “mediator”, she pulled them from their cells.  Ms. Scattini positioned herself in Door No. 4 thereby keeping the two inmates separated from each other but able to talk the matter over through the doorway.  The entire incident lasted no more than five minutes. The inmates were returned to their cells with the matter resolved. 

Sgt. Swope testified that on initially hearing the shouting he used his radio send a coded signal to determine if assistance was required.  He testified that the response was negative, none needed.  On hearing the shouting again, shortly thereafter, he responded by going to the scene.  He arrived at the scene just as the two female inmates were being returned to their cells.  Ms. Scattini informed him of what had happened (Trans. pp 317-318).  He testified that he believed, at the time and now, that Ms. Scattini took the appropriate action.

Lt. Turturici believed differently and reported his concerns to then Sheriff Nyland in a undated report (Appellant Ex. No. 1, p. 11).  Lt. Turturici believed that when Ms. Scattini took the two inmates from their cells, she violated a standing order issued by him the previous July 23rd. (Department Exhibit No. 7).  He also expressed his concern that by taking the two inmates from their cells without backup Ms. Scattini jeopardized the safety of the inmates, herself, and other officers on duty.  The evidence record is absent of anything to show that Sheriff Nyland or anyone from his office, including the Undersheriff, responded at the time to Lt. Turturici’s memo concerning the incident of Oct. 13th, 1998.

Both the gambling incident and the Oct. 13th incident in the jail occurred while Harvey S. Nyland was still Sheriff of San Benito County.  Lt. Turturici also conducted his Internal Affairs Investigation while Sheriff Nyland was in office. Curtis Hill was Undersheriff at this time and the jail was under his supervision.  Sheriff Nyland retired at the end of December, 1999.

There is nothing in the evidence record to show that Sheriff Nyland took any action or planned any action in the matters concerning Ms. Scattini.  Moreover, there is nothing in the evidence record showing any response at all, at the time, to Lt. Turturici’s Internal Affairs Investigation report.  Following Sheriff Nyland’s retirement at the end of the year, Curtis J. Hill, having won the election in November, 1998, became Sheriff of San Benito County in January, 1999.

            After Sheriff Hill took office, the matter concerning Ms. Scattini continued with a Notice of Intent to Terminate issued to her by Sheriff Hill on March 24, 1999.  She was subsequently issued a Notice of Termination by Sheriff Hill on April 15, 1999 for violations of both County and Departmental rules.  The effective date of termination was April 16, 1999.  The basis for termination was stated follows: 

“The proposed termination is based on the following acts or omissions which were brought to my attention: (1) gambling with prisoners; (2) knowingly giving false statements during an internal investigation; (3) smuggling contraband into facility; (4) accepting  on behalf of inmates and bringing them into the jail without first inspecting them; and (5) releasing prisoners from cells to cover-up smuggling.  Each of these issues is discussed individually below:”(Department Ex. 1)

Following the Notice of Termination, Ms. Scattini filed an appeal with the County Board of Supervisors.  The matter then proceeded to this Hearing.

 

POSITIONS OF THE PARTIES

The Sheriff’s Department

            The Department’s contention is that there was just cause to terminate Ms. Scattini’s employment.  She violated both County and Departmental rules.  She committed the following acts or omissions.  She (1) gambled with prisoners, (2) knowingly gave false statements during an Internal Affairs investigation, (3) smuggled contraband into the facility, (4) accepted items on behalf of inmates and brought them into the jail without first inspecting them, and (5) released prisoners from cells to cover-up smuggling.

The Department acknowledged Ms. Scattini’s thirteen years of employment and favorable performance evaluations as mitigating factors.  However, the violations were of a very serious nature and greatly outweigh the two mitigating factors.  Termination of her employment was the appropriate penalty.  The appeal should be denied.

The Appellant, Ms. Scattini

            The Department did not have just cause to terminate Ms. Scattini’s employment.  She was a veteran, correctional officer with more than thirteen years of good performance evaluations.  She had a spotless record.  Ms. Scattini made a mistake when she made the bet on the football game with the two inmates.  She did not lie about making the bet.  She was, however, not completely truthful when questioned by Lt. Turturici about when she returned the $20.00 to the inmates.  Ms. Scattini did not jeopardize anyone’s safety when she pulled the two inmates out of their cells on the night of October 13, 1998.  Using the discretion and judgment of an experienced correctional officer, she used that experience to bring to an end a dispute which could have progressed into something worse.  Ms. Scattini’s actions on the evening of Oct.13th were judged and determined to be appropriate for the occasion by the shift’s Watch Commander.  She also did not smuggle contraband into the jail nor did she jeopardize the safety of staff and inmates when she did not inspect the unopened carton of cigarettes. 

Ms. Scattini made a mistake but termination of her employment with the County was not the appropriate penalty.  Her thirteen years of service as a correctional officer with good performance evaluations and a spotless record were not given due consideration as mitigating factors.  The Appeal should be upheld.

 

DISCUSSION

            Belinda Scattini was a thirteen-year employee of the County with thirteen years of average or above average performance evaluations and a spotless record.  As a Correctional Officer in the jail, she was judged to be an experienced and competent employee of the Sheriff’s Department.  Over the years, she had also served as Training Officer for new correctional officers and had even served as Acting Watch Commander on occasion. 

The central question in this matter is whether her actions, first-time offenses, were so serious that termination was the appropriate penalty.  Discharge is the ultimate penalty that can be imposed on an employee.  Discharge takes from the employee income, benefits, and can impede the employee’s opportunity to secure other employment.  Guidance in arriving at an answer to this question is provided in the County’s own policy and procedures which are memorialized in RULE 9 which contain the County’s disciplinary policy and procedures for all County employees, including employees of the Sheriff’s Department (emphasis added).

The County’s policy on discipline is clear.  Disciplinary actions are to be “corrective rather than punitive” (Emphasis added).  The policy tells an employee that she has worth and value to the County and is entitled to an opportunity modify or correct the unacceptable behavior.  However, it does puts the employee on notice that failure to meet expected standards of conduct may be grounds for discipline and that the discipline will be progressively severe in application.  The policy goes a step further and makes a promise to all employees.  It expressly states that the appropriate “disciplinary action shall be commensurate with the seriousness of the offense and with due consideration of the employee’s prior performance record” (emphasis added).  With that promise, however, there is a caveat in that the policy puts the employee on notice that for some first-time serious offenses the discipline may include any action up to and including termination. 

One feature of the County’s policy on discipline that caught my attention is that it does not distinguish disciplinary action from discharge.  There are many, including this Hearing Officer, who believe that discharge is apart from all other forms of discipline.  Some speak of discharge as a part of the disciplinary progression, a step above lesser penalties.  That perception is flawed.  Discharge and disciplinary actions are separate penalties.  Disciplinary actions are corrective measures designed to rehabilitate.  Discharge on the other hand is severance of the employment relationship.  The employer no longer has any legitimate interest in whether a discharged employee ever achieves rehabilitation.  The employer’s sole purpose is to unburden itself of an individual whose conduct has become intolerable.  In other words, discharge is designed to abolish the employment relationship; disciplinary action is designed to improve it.

Before addressing the five charges levied against Ms. Scattini, a few observations, derived from this hearing regarding gambling and smoking in the jail and the policy on items inmates are allowed to receive from relatives & visitors will serve as a prelude.  The Sheriff’s Department has no policy on gambling among correctional officers. While the Jail Commander, Lt. Turturici, testified that he would be "shocked" to learn that gambling goes on between correctional officers in the jail, the evidence record contains testimony from several officers, including Sheriff Hill, showing that gambling is an on-going practice between officers in the jail.  The betting is usually on athletic events in the form of individual bets and betting through Football Pools, etc. 

Betting among or between officers is not at issue in this instance.  David Bloomer, an investigator with the District Attorney’s office and a former member of the Sheriff’s Department and jail commander, gave an interesting and informative description of betting practices in the jail.  Betting, according to Mr. Bloomer, takes place on three levels: (1) inmate to inmate, (2) inmate to officer, and (3) officer to officer.  Betting between officers, as long it is not blatant, in fun, and not in the form of “making book” is tolerated.  Sheriff Hill expressed the same attitude in his testimony.  Inmate to inmate betting is discouraged and will, depending on the circumstances, result in a write-up.  Betting between an officer and an inmate, however, is unacceptable.  Mr. Bloomer testified that on the occasions when he learned of an officer betting with an inmate, he would counsel the officer and put them on notice it was unacceptable conduct.  He testified that he never had to warn an officer twice (Trans. pp 189-191).

The correctional facility, referred to as the new jail, is a smoke free facility and the officers are diligent in their efforts to keep the inside of the facility free of tobacco.  For inmates, this can result in a search of their cells if suspected of hiding tobacco.  However, outside of the buildings and on the grounds of the facility, smoking by officers and inmates is a common occurrence as evidenced by the testimony of the witnesses (Trans. pp. 193-194, 324). 

Inmates are not permitted to have tobacco in their possession.  But, inmates who are on work furlough status or who are eligible to work as a crewmember with an outside agency have access to cigarettes.  In practice, each of these inmates have a Work Crew Box, kept under supervision by the officers, in which they can store items used by them while away from the jail working with a crew or on furlough.  Included among these items are cigarettes.  Inmates take the items, including cigarettes, from their respective box when departing for work and are strip searched on return to keep prohibited items such as cigarettes out of the facility.  If cigarettes are found during the search, they are put in the inmate’s box for storage or they may be confiscated.

The rules at the jail are very restrictive with respect to items that inmates can receive from relatives.  When asked by the Hearing Officer what items inmates are allowed to receive, Lt. Turturici was specific.  He stated that the only items inmates are allowed to receive from relatives and visitors are: (1) prescription medicines, (2) prescription eyeglasses, and (3) shoes.  He testified that these items and all others must first be cleared through him, the Jail Commander.  In addition, all packages and containers must be searched for prohibited items.  In his own words, “Nothing can come in without my approval” (Trans. pp 361-363).   Lt. Turturici cited his memo of 3-26-98 to all staff regarding items brought by family & visitors as evidence that nothing could come in without his approval and that Ms. Scattini’s action was a direct violation of a clear written instruction.  His memo read:

 

"It has come to my attention that there has been some confusion on items brought by family and visitors.

There will be no medications, shampoo, soaps, shoes, clothes etc. excepted.  This policy needs to be enforced by all personnel. (Department Ex. 4)

 On submission of this document, the Hearing Officer was informed that the word "excepted" needed to be replaced with the word "accepted". On reading the memo, I found it to be somewhat confusing when read alongside Lt. Turturici's testimony regarding the receipt of prescription medicines and shoes for prisoners (Trans pp 361-363).  The wording in the memo is ambiguous and cannot serve as evidence of a violation of a clear written instruction given to Ms. Scattini.

For discussion and analysis, the five charges levied against Ms. Scattini can be grouped into two categories.  One category pertains to smuggling cigarettes and the other to gambling with inmates.  In regards to the smuggling issue, the Department contends that Ms. Scattini acted as a conduit, an agent for Inmate Letisha Hernandez and conspired to accept cigarettes from Inmate Hernandez’s Mother for her use in the jail. 

There is nothing in the evidence record that supports this allegation.  It is a stretch of the imagination that is based on speculation and hearsay.  Ms. Scattini accepted the sack containing the carton of cigarettes, paper, pencils, etc. from the Mother on the night in question.  And she put the carton of cigarettes in Inmate Billup’s work crew box.  This was a violation of the rules, but nothing was placed in evidence to support the charge that Ms. Scattini acted as a conduit for or conspired with Inmate Hernandez to receive cigarettes from Hernandez's Mother.   My conclusion, as derived from the evidence record, is that the receipt of cigarettes from relatives & visitors for inmates was an on-going practice.  It was also clear that when cigarettes were received, they were not given to the inmates for use in the jail.  The cigarettes were kept in the inmates property or work crew box.  As Ms. Scattini testified, and which was supported by the testimony of Sgt. Dickerson, enforcement of the rules was lax (Trans. p 178). 

The related charge is Ms. Scattini jeopardized the safety of inmates and officers when she did not inspect the carton of cigarettes.  She testified that Ms. Hernandez left the sack on the bench at Gate 9 and she retrieved it about 15 minutes later.  On opening the sack she found it contained an unopened carton of cigarettes (emphasis added).  An unopened carton of cigarettes is not analogous to a wrapped box or container.  Ms. Scattini had 13 years experience working in the jail.  She obviously used her discretion, as officers are expected to do according the Sheriff Hill (Trans. p. 274), in determining the carton to be free of objects that could jeopardize the safety of others.  If you were to carry the Department’s argument to its logical extension, not only should she have broken open the carton, she should have broken open each pack of cigarettes in the carton.  You could even go one step further and argue she should have broken open each individual cigarette.

The third charge in this category by the Department was that Ms. Scattini pulled Inmates Billups and Hernandez from their cells the night of Oct.13 to cover-up the smuggling.  Again, there is nothing in the evidence to support this contention.  She pulled the inmates from their cells to quash a fuss about cigarettes, she kept the inmates apart from each other, and the inmates were returned to their cells within 5 minutes with the dispute resolved.  Moreover, her actions that night were judged to be the appropriate action by the Watch Commander and did not jeopardize the safety of the inmates or others.  The Department also put forth that the Watch Commander, Sgt. Swope, was mistaken in his assessment of Ms. Scattini’s action because he was not aware that she was smuggling cigarettes for Inmate Hernandez.  The Department, however, offered nothing into the evidence record to support this contention. 

The Department further contended that Ms. Scattini was in violation of a direct order by Lt. Turturici to keep the two female inmates apart (Department Ex. #7).  The memo, dated July 23, 1998 was clear.  It instructed the A & B teams of the Graveyard shift, “Don’t allow Letisha Hernandez or any other inmate that is high risk out at night to do clean up or anything else.  This is an order. 

            Department Exhibit #7 is not proof that Ms. Scattini violated a direct order.  By October 13, the evidence record shows that Inmate Hernandez was no longer considered a “high risk” inmate.  Lt. Turturici’s testified that he had changed her classification and assigned her to work in the kitchen, obviously not a work place for high-risk inmates.  In the kitchen, she worked alongside the other female inmate, Billups.  Lt. Turturici removed Inmate Hernandez from kitchen work shortly before Oct. 13 after Sheriff Nyland questioned him on several occasions as to the propriety of her working in the kitchen.  Lt. Turturici also testified about a procedure where an inmate can write a letter requesting reclassification every 30 days.  He also testified that as the Jail Commander he has the authority to override any classification (Trans. pp 357-361). 

There was no violation of a direct order by Lt. Turturici to keep the two female inmates apart.  Inmate Hernandez was not considered a high-risk prisoner at the time of the incident on Oct. 13.  The other woman, Inmate Billups, was on work crew status at the time and therefore not a high-risk prisoner.  Moreover, Inmate Billups was not even mentioned in the memo of July 23rd.

To summarize the smuggling issue, Ms. Scattini knew the rules.  She should not have accepted the carton of cigarettes and should not have disposed of the carton by placing it in Inmate Billups' Work Crew Box .  Ms. Scattini inspected the contents of the sack left by the Mother and used her discretion to judge the sealed, unopened carton of cigarettes to be a safe item.  She could be disciplined for accepting the carton and not properly disposing of it, but not for jeopardizing the safety of others.  The conclusion of the Hearing Officer is that the evidence record does not support the charge that she released the two inmates to cover up smuggling because the smuggling charge is not support by the record.

The second category includes the charge of gambling with inmates and lying.  Ms. Scattini should not have made the bets on the football game with Inmates Texeira and Mora.  Doing so was a clearly a violation of the Department’s no fraternization rule.  Having done so, she is subject to discipline by the Department. 

Ms. Scattini freely admitted that she made the bets when questioned by Lt. Turturici in the Internal Affairs Interview on Dec. 11th.  However, her lying was not in response to whether she made the bets or with whom she made the bets.  Her lying was in response to the repeated question, “When did you return the money?”  Her first answer was, “I returned it. I put it in their furlough boxes.”  Her second answer was, “About a week ago.”  Her third answer was, “A few days ago.  I returned it.”  Ms Scattini was not as truthful or as cooperative as she should have been during the Internal Affairs Interview.  Why she answered the questions as she did would be speculative on my part.  However, her responses to the questions were characterized by Sheriff Hill with the comment,  “She danced around the question” (Trans. pp. 255-256). 

The Department further contended that the note which Ms. Scattini wrote and included in the envelope with Inmate Texeira’s $10 was an attempt by her to destroy evidence.   The note (Dept. Ex. #2) read:

 

Brent & Martin

            Hey – that bet we had as far as you know – it was just a friendly bet – here’s your 10 spot back –Guess Sgt. Dickerson blabbed back to Lt. Pat and now they are trying to nail me big time on it!  Oh well, it was fun anyway.  Tell Martin Mora too!  Here is your $ back in your property!  It’s not legal to bet!

Keep cool ----

Lynn Scattini                                    Please destroy this after reading!”

The question to ask is what evidence did she attempt to destroy?  It was not evidence of actually making the bets, or evidence of whom she bet with, nor evidence of the amount of the bet.  The note was not an attempt to destroy evidence.  Sheriff Hill’s comments about the note at the hearing were revealing when he said, “indicates to me   first name basis”  “informal”  “friendly”    “too close to inmates”  “friendly bet  meaning trying to soften the issue”   “too close to inmates”  “an interesting document”   It was significant to note that Sheriff Hill repeated the phrase “too close to inmates” three times.  Along with the above, the Sheriff also made the comment, “She had the money for 9 days.  That is all I need to know.”  It was “a lie when she said she had given the money back a few days prior” (Trans. pp 260-261). 

Ms. Scattini can be faulted and even be disciplined for fraternizing with inmates.  The note, however, was not an attempt to destroy evidence.  It can be read though, using the words of Sheriff Hill, as an attempt to “soften the issue” (Trans. pp 229-230).

Another significant finding that came out of the hearing was that Sheriff Hill, before making his decision to terminate Ms. Scattini’s employment with the County, did not listen to the tape recording of the Internal Affairs interview of Ms. Scattini conducted by Lt. Turturici (Emphasis added).  He testified that he relied only on the documents given to him by Lt. Turturici, his conversations with Lt. Turturici, and the Lt.’s summarized version of selected portions of the tape recording made my Lt. Turturici and that was all he needed.  Sheriff Hill testified that he listened to the original tape of the Internal Affairs interview only in preparation for this hearing (Trans. pp 245-248, 260).  Fairness is a basic element of the just cause standard and it requires that the decision-maker, especially in discipline and discharge matters, evaluate the complete evidence record, not a filtered version.

There is no argument with Department’s contention that when a sworn officer has been caught lying that it “dilutes our culture and community trust.”  There is also agreement with the Department that sworn officers caught lying should receive a harsh penalty.  There can be disagreement, though, that the only appropriate penalty for all cases of lying is termination, especially when it concerns a long-time employee with a good performance record.

In the Notice of Termination, the Department stated that it found two factors in mitigation.  One that Ms. Scattini had been employed with the County since 1986 and the other that she had received favorable performance evaluations.  The Department stated that the two factors in mitigation were greatly outweighed by the very serious nature of the violations and that “termination was necessary” (Dept. Ex. 1). 

The County’s Disciplinary Policy and Procedures, expressed in RULE 9, clearly state that: (1) the appropriate disciplinary action shall be commensurate with the seriousness of the offense and with due consideration of the employee’s prior performance record and (2) that for certain first-time offenses, the initial step in progressive discipline may include any action up to and including termination (Emphasis added). 

This matter comes down to one question.  Were Ms. Scattini’s offenses serious enough to warrant termination?  The answer is no!  She violated the rules when she gambled with inmates.  She also violated the rules when she accepted the cigarettes from Ms. Hernandez and made them available to Inmates Hernandez and Billups.  But, the evidence record, as discussed above, does not support the charge that she served as an agent for the inmate to smuggle cigarettes.  Nor does the evidence record support the charge that she jeopardized the safety of inmates and officers when she did not open the sealed, unopened carton of cigarettes.  In short her, offenses were limited to fraternization (gambling with inmates), improper disposal of the carton of cigarettes, and lying about the date that she returned the $20 won in the wager with the two inmates.

The final question requiring discussion is whether Ms. Scattini’s prior performance record was given “due consideration”?  In my judgment, No!  In every case I know of, where an arbitrator, a hearing officer, or the like has reduced or recommended that a discharge be reduced to a penalty less than discharge, it has been where due consideration was not given to a long-term employee with a spotless record showing good performance evaluations.  Ms. Scattini had 13 years of employment with a spotless record and good performance evaluations.  RULE 9 required that her prior performance given be given “due consideration”.  The word due, according to any standard dictionary, means “owed or owing as a debt”.  The evidence record did not show that her prior performance record was given the required due consideration by the Department.

Therefore, for the reasons discussed above, it is the decision of the Hearing Officer that the Department did not have just cause to terminate Ms. Scattini’s employment with the County.  The Department did, however, have just cause to take disciplinary action against Ms. Scattini with a penalty less than termination.

The next question is what should be the appropriate remedy?  This is always a difficult answer to determine.  The decision-maker, however, does have assistance.  A widely accepted standard used as a guide through this process is the question “What would the disciplinary penalty have been if given at the time of the misconduct?”  For violation of the no fraternization rule, betting with inmates on the football game, a warning or reprimand would be appropriate.  Ms. Scattini, according to testimony, has been and would be now receptive to counseling and construction criticism.

However, for not being completely truthful and for not cooperating fully during the Internal Affairs Investigation about disclosing when she returned the money to the two inmates, a more severe disciplinary action is appropriate.  The appropriate penalty should be severe enough to cause Ms. Scattini, a sworn officer of the law, to realize the seriousness of her misconduct.  The appropriate penalty should also serve as a warning to other sworn officers in the Department that this type of behavior is unacceptable to the good order and efficient operation of the Department.  For this offense, it is the opinion of the Hearing Officer that an appropriate would be a three-week suspension without pay.

CONCLUSION

 

            The Department did not have just cause to terminate Ms. Scattini’s employment with the County.  However, the Department did have just cause to take disciplinary action with a penalty less than termination.  An appropriate penalty is a three-week suspension without pay for the period of April 16, 1999 through May 7, 1999.

 

RECOMMENDATION

 

                Ms. Scattini should be immediately restored to her former position with the County as a Correctional Officer in the Sheriff’s Department.  Except for the three-week suspension without pay, Ms. Scattini should be made whole (less other income earned) for all lost wages and benefits. 

 

 

Date: ____________________                                            ____________________________

                                                                                                C. ALLEN POOL

                                                                                                Hearing Officer

 

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