ARIZONA STATE PERSONNEL BOARD
MEETING MINUTES

FEBRUARY 26, 2014

 

The Arizona State Personnel Board meeting was called to order by Chair Jim Thompson at 11:50 a.m. The meeting was held at 1400 West Washington Street, Suite 280, Phoenix, Arizona. Board members in attendance were Jim Thompson and Joseph Smith. Mark Ziska appeared telephonically. Staff members present were Jeff Bernick, Counsel for the Board, and Laurie Barcelona, Executive Director.

 

The board called for comments from the public. There being no public comments, the board considered the approval of the minutes from the January 22, 2014 open public board meeting. Joe Smith moved to adopt the minutes. Mark Ziska seconded the motion which carried unanimously.

 

Next, the board considered the dismissal appeal of Victor D’Souza v. Department of Corrections.

 

Mr. D’Souza requested that the board uphold the hearing officer’s recommendation to reinstate him and stated that he is sorry for the incident.

 

Kirstin Story, Assistant Attorney General representing the Department of Corrections, stated that Mr. D’Souza hugged another officer without permission and offered her a room in his home. Ms. Story continued by stating that the hearing officer’s recommendation stated that the incident was a “he said, she said” situation and failed to make a determination as to the credibility of the witnesses. As explained by Ms. Story, the facts support the relative credibility of the female officer because she had no reason to lie and was not initially willing to report the incident until ordered to do so. On the other hand, Mr. D’Souza had previous discipline for inappropriate sexually-oriented conduct directed towards a female officer. The hearing officer did, however, find that based on Mr. D’Souza’s own admission to the charges the department’s dismissal of Mr. D’Souza was within the range of permissible penalties. Continuing, Ms. Story stated that the hearing officer’s finding concerning the female officer’s exuberant personality was improper and irrelevant in situations for sexual harassment and asked that the finding be stricken. She then asked the board to uphold the dismissal.

 

Joseph Smith inquired about Finding of Fact #8 as the finding that Ms. Story referred to as inappropriate. Ms. Story answered in the affirmative. Mr. Smith asked how the third party, who made the inappropriate statement regarding the victim’s exuberant conduct, was involved. Ms. Story stated that the officer was not a witness to the interactions between Mr. D’Souza and the victim, which was the subject matter of the appeal.

 

Kathryn Baillie, attorney representing Mr. D’Souza, stated that Ms. Story was incorrect when she stated that Mr. D’Souza offered the victim a room in his home, but instead offered an extra bedroom in a trailer that he owns, which is located close to the complex so that he has a place to stay nearby when he gets overtime.

 

There being no further discussion, Jim Thompson proposed the following motion:

 

"I move that we adopt the hearing officer’s Findings of Fact as our own, except Finding of Fact #8 and Conclusions of Law, which I move we reject and substitute the following Conclusion of Law: I find that the Department of Corrections has proven by a preponderance of the evidence the material facts on which the dismissal was based and that the dismissal was not arbitrary and capricious. I then move appellant’s appeal be denied and the agency’s action of dismissal be upheld."

 

Joseph Smith seconded the motion which carried unanimously.

 

Next, the board considered the dismissal appeals of Carlos Nieto and Christian Pineda v. Department of Corrections.

 

Donna McDaniel, Attorney at Law representing Mr. Nieto and Mr. Pineda, stated that both had excellent performance evaluations and only Mr. Pineda had one prior discipline. Ms. McDaniel explained that an inmate initially refused to be strip searched, but agreed after a supervisor told him to comply. Ms. McDaniel continued by stating that Mr. Pineda was present with his service dog when Mr. Nieto entered the cell and the inmate threw an elbow jab at Mr. Nieto. Mr. Nieto then used a spontaneous use of force because there was no other option and took the inmate to the ground and was in the process of restraining him when Mr. Pineda’s service dog gave the inmate a muzzle punch in an attempt to protect Mr. Nieto. Continuing, Ms. McDaniel stated that Mr. Pineda had not given a command for the dog to engage, but removed the dog from the inmate and gave commands to the dog to stop engaging. Once restrained, the inmate was dragged from the cell by another officer. As explained by Ms. McDaniel, by policy, an Incident Command System (ICS) and incident reports were supposed to have occurred and all six of the officers present admitted that they should have been done. Mr. Nieto and Mr. Pineda were the only officers that were dismissed because the department charged them with excessive use of force. Ms. McDaniel stated that the hearing officer’s report stated the department did not prove by a preponderance of the evidence that the appellants used excessive force. The officer who dragged the inmate from the cell, which is considered to be a use of force, only received a 40-hour suspension, as well as the rest of the officers involved, as told by Ms. McDaniel. Ms. McDaniel requested the board adopt the hearing officer’s recommendations for modified discipline.

 

Joseph  Smith inquired as to where the inmate was coming from in order for a strip search to be warranted. Ms. McDaniel explained that the inmate was being transported from one unit to another and an officer, who received a 40-hour suspension for the incident, allowed the inmate to wander where he should not have been and was witnessed, by Mr. Nieto, putting something in his pocket.

 

Robert Sokol, Assistant Attorney General representing the Department of Corrections, stated that the inmate was being transferred from another prison and was in a temporary holding cell with his hands and stomach shackled. Mr. Sokol stated that the proper procedure is to give the inmate a command for a strip search and wait for the inmate to comply, but Mr. Nieto and Mr. Pineda started aggressive action against the inmate, who was not a danger to anyone or himself. When Mr. Nieto received resistance from the inmate, he forced the inmate’s face against the wall, then forced him on his knees and then to the ground. Mr. Sokol continued by explaining that the inmate was dragged from the cell while on his back by a sergeant who was, in fact, terminated, but chose not to appeal his discipline. As explained by Mr. Sokol, Mr. Pineda was supposed to have taken pictures when his service dog has engaged and resulted in injuries and neither Mr. Pineda nor Mr. Nieto submitted the necessary reports. Mr. Sokol stated that an unreasonable use of force is a class seven violation and dismissal is within the range of discipline. Mr. Sokol stated that it appeared to be a cover-up by all concerned and requested that the board uphold both dismissals.

 

Joseph Smith inquired about whether the inmate’s hands were actually restrained. Mr. Sokol stated that there was conflicting testimony, but the inmate was in a secured cell and Mr. Nieto and Mr. Pineda only needed to wait it out. Mr. Smith then inquired about the service dogs on the scene. Mr. Sokol stated that there were two dogs on the scene, but only Mr. Pineda’s dog engaged. Mr. Smith asked how long it takes for a service dog to get to the scene. Mr. Sokol was not sure, but stated that both dogs were at the scene at the time the inmate was dragged from the cell. Mr. Smith inquired about the decision an officer must make with regards to spontaneous use of force. Mr. Sokol stated that a spontaneous use of force is needed to protect one’s self, but in this case it was not necessary to reach that point because it was a situation that was created by the officers involved. Mr. Smith asked why there were so many officers involved and if there were any stationary cameras in the area. Mr. Sokol explained that there were officers assigned to the holding area, officers from the bus that was transporting the inmates and the dog handlers, but there was no evidence of any cameras in the area.

 

There being no further discussion, Mark Ziska proposed the following motion regarding Mr. Nieto:

 

"I move that we adopt the hearing officer’s Findings of Fact as our own. I move we reject and substitute therefore the following Conclusions of Law:  I find that the Department of Corrections has proven by a preponderance of the evidence the material facts on which the dismissal was based and that the dismissal was not arbitrary and capricious. I then move the appellant’s appeal be denied and the agency’s action of dismissal be upheld."

 

Joseph Smith seconded the motion which carried with aye votes from Joseph Smith and Mark Ziska. Jim Thompson voted nay.

 

Mark Ziska proposed the same motion regarding Mr. Pineda:

 

"I move that we adopt the hearing officer’s Findings of Fact as our own. I move we reject and substitute therefore the following Conclusions of Law:  I find that the Department of Corrections has proven by a preponderance of the evidence the material facts on which the dismissal was based and that the dismissal was not arbitrary and capricious. I then move the appellant’s appeal be denied and the agency’s action of dismissal be upheld."

 

Joseph Smith seconded the motion which carried unanimously.

 

Next, the board considered the dismissal appeal of Phillip Perry v. Department of Corrections.

 

Kathryn Baillie, Attorney at Law representing Mr. Perry, stated that there was a confrontation between Mr. Perry and another officer while riding together in a van. Ms. Baillie explained that Mr. Perry grabbed the other officer by the neck when a pen was presented, which Mr. Perry perceived to be a weapon. Furthermore, Ms. Baillie stated that Mr. Perry did not start the fight and was acting in self-defense. Ms. Baillie asked the board to reinstate Mr. Perry and requested an 80-hour suspension.

 

Joseph Smith asked whether this was a state van, how many people were in the van and if it was moving. Ms. Baillie answered in the affirmative that it was a state van and that the van was parked. Furthermore, Ms. Baillie stated that there were at least four in the van based on the fact that there were two witnesses. Mr. Smith inquired as to the nature of the argument. Ms. Baillie stated that the confrontation was in regards to who is eligible to use the van.

 

Kirstin Story, Assistant Attorney General representing the Department of Corrections, stated that the confrontation occurred in a van-pool van set up through the Department of Corrections, which was moving at the time of the altercation with five or six riders. Continuing, Ms. Story explained that the officers involved in the altercation were seated with two rows between them and charged each other in the middle of the van and then Mr. Perry grabbed the other officer by the neck pinning him down onto a seat. Both officers then returned to their seats and only then was there discussion regarding a pen. Ms. Story stated that Mr. Perry was dismissed for insubordination for violating the standards of conduct for state employees, discourteous treatment of a co-worker for a threat of physical violence and inappropriate verbal confrontation; as well as neglect of duty for disregarding the directives of a supervisor. The day following the incident, Mr. Perry was belligerent towards his supervisor when he was ordered to complete a report on the incident as stated by Ms. Story. The board was asked by Ms. Story to adopt the hearing officer’s recommendation and uphold the dismissal.

 

Joseph Smith asked if the officers involved in the altercation worked together or if there were lingering hostilities that would have caused the incident. Ms. Story stated that most of them are in different units, but the following day when they were all together to prepare their reports on the incident, Mr. Perry demanded that they provide him a copy.

 

There being no further discussion, Joseph Smith proposed the following motion:

 

"I move that the Department of Corrections has proven by a preponderance of the evidence that the material facts on which the dismissal was based and that the dismissal was not arbitrary and capricious, I move we adopt the hearing officer’s Findings of Fact and Conclusions of Law as our own. I then move appellant’s appeal be denied and the agency’s action of dismissal be upheld."

 

Jim Thompson seconded the motion which carried unanimously.

 

Next, the board considered the dismissal appeal of Ken Roland v. Department of Corrections.

 

Martin Bihn, Attorney at Law representing Mr. Roland, stated that an inmate had passed away in his cell, which occurred sometime during the course of two shifts, but only Mr. Roland was terminated. Mr. Bihn stated that the hearing officer found that there were two officers with the same conduct, but disproportionate discipline. Mr. Bihn continued by stating that the department cannot prove its case because the time of death of the inmate was not determined. Continuing, Mr. Bihn stated that one of the charges against Mr. Roland was that he did not know that the inmate was in the wrong bunk, but Mr. Roland would have relied on the previous officer on duty to put the inmate in the correct bunk and Mr. Roland would not have received a report on inmate locations until long after the death occurred. Consequently, the hearing officer found no basis for this charge against Mr. Roland, but the officer on the previous shift did have a list of inmate locations and only received an 80-hour suspension as explained by Mr. Bihn. The board was asked by Mr. Bihn to adopt the hearing officer’s recommendation.

 

Joseph Smith asked why there was no copy of the autopsy. Mr. Bihn did not know, but questioned why the department would discipline someone without knowing when the inmate actually died.

 

Robert Sokol, Assistant Attorney General representing the Department of Corrections, stated that the officer on the previous shift testified that the inmate was alive at 5:30 a.m. when he did his last security check before he left work. After that time, Mr. Roland was on duty and had already conducted two security checks before finding the non-responsive inmate on the third security check. Mr. Roland admitted that he did not check for “living, breathing flesh” in his first two security checks and Mr. Sokol continued by stating that the inmate died during Mr. Roland’s shift and that fact is undisputed.

 

Jim Thompson inquired about Finding of Fact #9 about the department not knowing the exact time of death and the nurse telling Mr. Roland that the inmate had been dead for a few hours; indicating the inmate may have been dead before Mr. Roland’s shift began at 6:00 a.m. Mr. Sokol stated that there were no medical witnesses to back up Mr. Roland’s testimony that this statement was made to him. Continuing, Mr. Sokol stated that there is undisputed testimony that the officer on the previous shift stated that he was sure the inmate was breathing.

 

Joseph Smith inquired about the previous shift and that the officer asked the cell mate to check the deceased inmate. Mr. Sokol re-read the testimony of the officer, which indicated that the officer entered the cell and saw signs that the inmate was breathing and the hearing officer did not mention in the report that the officer was not a credible witness.

 

There being no further discussion, Joseph Smith proposed the following motion:

 

"I move that we adopt the hearing officer’s Findings of Fact and Conclusions of Law as our own. I then move appellant’s appeal be sustained to the extent appellant’s dismissal be modified to an 80-hour suspension without pay, and that all back pay and benefits be restored to him save and except those during the above suspension. I further move that the appellant be returned to the same exact position he held prior to his dismissal, including the same work location, duties, job title, salary and benefits, if said position is currently available. In the event appellant’s former position is not available, the agency shall return appellant to as substantially equivalent a position as is currently available with equivalent benefits, pay and other terms and conditions of employment. I further move Exhibits R-10 and R-11 be sealed."

 

Jim Thompson seconded the motion which carried unanimously.

 

Next, the board considered the dismissal appeal of Sheryl Watkins v. Department of Corrections.

 

Martin Bihn, Attorney at Law representing Ms. Watkins, stated that Ms. Watkins was a parole officer and long-time employee, but was having some problems at work and the department recommended that she be demoted back to a correctional officer position, except for the chief human resources officer in the central office, who recommended termination. Mr. Bihn stated that there was no dispute regarding the charges, but believed that a demotion would have been more appropriate and asked that the board reinstate Ms. Watkins with a demotion to a correctional officer.

 

Joseph Smith asked if there were any earlier discussions regarding her performance. Mr. Bihn stated that there was an audit conducted and then she was given a necessity to improve (NNI) and it came very quickly, but she was overwhelmed and would have gladly gone back to a correctional officer position.

 

Kirstin Story, Assistant Attorney General representing the Department of Corrections, stated that Ms. Watkins was dismissed for incompetence, inefficiency and neglect of duty after she failed to demonstrate improvements in areas outlined in an NNI. Ms. Story continued by explaining that Ms. Watkins’ supervisor met with her three times after the NNI was issued and that Ms. Watkins had two prior disciplines concerning her failure to perform going back to 2011. Ms. Story asked the board to adopt the hearing officer’s recommendation.

 

There being no discussion, Jim Thompson proposed the following motion:

 

"Finding that the Department of Corrections has proven by a preponderance of the evidence that the material facts on which the dismissal was based and that the dismissal was not arbitrary and capricious, I move we adopt the Hearing Officer’s Findings of Fact and Conclusions of Law as our own. I then move appellant’s appeal be denied and the agency’s action of dismissal be upheld."

 

Mark Ziska seconded the motion which carried unanimously.

 

Next the board considered scheduling the next board meeting.  Jim Thompson proposed the following motion:

 

"I move we hold our next regularly scheduled open public meeting of the board on March 26, 2014, at 11:00 o’clock a.m. at 1400 West Washington Street, Suite 280, Phoenix, Arizona. I further move we hold an executive session on the same date at the same location at 10:30 a.m."

 

Joseph Smith seconded the motion which carried unanimously.

 

There being no further business before the board, Jim Thompson proposed the meeting be adjourned. Joseph Smith seconded the motion which carried unanimously. The meeting adjourned at 1:00 p.m.

 

 

(Quotations of board members in these minutes have been reviewed by staff for grammatical content, and certain grammatical changes may have been made by staff administratively. No changes to content have been made by staff administratively or otherwise.)

 

Respectfully submitted:
March 7, 2014

Robin Van Staeyen

Administrative Assistant II
Arizona State Personnel Board

 

This page was last updated Friday, March 28, 2014.

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