METROPOLITAN GOVERNMENT vs. WADE HALES, Appellant.

University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 6-17-2011 METROPOLITAN GOVERNMENT vs. WADE HALES, Appellant. Follow this and additional works at: http://trace.tennessee.edu/utk_lawopinions Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

BEFORE THE CIVIL SERVICE COMMISSION OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY IN THE MATTER OF: METROPOLITAN GOVERNMENT v. DOCKET NO: 43.02-109699J WADE HALES, Appellant. INITIAL ORDER This matter came to be heard on June 16, 2011, and continuing on June 17, 2011, before Mary M. Collier, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division, to sit for the Metropolitan Civil Service Commission in Nashville, Tennessee. Mr. Jon Michael, Assistant Metropolitan Attorney, represented the Metropolitan Government of Nashville and Davidson County ( Metro ). The Appellant, Wade Hales, was present and represented by legal counsel, Mr. Bob Lynch, Jr., of the Nashville bar. After the hearing, a Transcript was ordered and the parties filed proposed findings of fact and conclusions of law. The subject of this hearing was Mr. Hales appeal of his five-day suspension and demotion for conduct in violation of the Davidson County Sheriff s Office policies regarding use of force. After consideration of the RECORD in this matter, it is determined that Metro has shown by a preponderance of the evidence that Mr. Hales violated the Davidson County Sheriff s Office policies and Metro civil service rules and that the five-day suspension and demotion of Mr. Hales was appropriate discipline and is hereby UPHELD. This decision is based upon the following.

FINDINGS OF FACT 1. The Appellant, Wade Hales, has been an employee of the Davidson County Sheriff s Office ( DCSO ) for 19 years. 2. On July 25, 2010, the date of the incident in question, Mr. Hales was a Lieutenant, serving as the ranking officer in charge of the entire Criminal Justice Center ( CJC ) in downtown Nashville. 3. As the Lieutenant in charge of the CJC, Mr. Hales was given multiple job duties, including: supervising the correctional officers and sergeants; monitoring the attendance, personal appearance, and job performance of the correctional officers and sergeants; determining and assigning posts; reviewing officer reports/forms and making recommendations for revisions; interpreting rules, policies, and procedures for officers; counseling employees regarding problems/concerns; generating verbal and written reprimands for officers/sergeants when necessary; intervening when necessary to deescalate situations between inmates and officers; managing the security of the facility; overseeing all calculated use of force situations; and reviewing video documentation of incidents. 4. On July 25, 2010, Inmate John D. Johnson was being escorted to his cell on the Special Management Unit ( SMU ) on the 5 th Floor Alpha ( 5-A ) of the CJC. The SMU is for offenders who need to be housed by themselves because they are a threat to both staff and other offenders. While being escorted by Corporal John David Bass and Officer Lynous Wilkerson to his cell, Inmate Johnson assaulted both officers and refused to follow directives. Corporal Bass and Officer Wilkerson took Inmate Johnson to the ground. Because Inmate Johnson was still combative, Corporal Bass and Officer Wilkerson administered a chemical agent called Freeze Plus P. 2

5. From his position in the control room, Sergeant Christopher Allgood, the floor supervisor, observed Corporal Bass and Officer Wilkerson escorting Inmate Johnson down the hall. He left the Control Room and proceeded to the scene, where he observed the physical altercation between the inmate and the officers. In response to the emergency situation, Sergeant Allgood called a Code Red on his radio. A Code Red summons other officers to assist when an officer is in distress. 6. Sergeant Allgood assisted Corporal Bass and Officer Wilkerson in removing inmate Johnson s wrist restraints from in front of his body and replacing them behind his back to assist in deescalating the situation. Corporal Bass, Officer Wilkerson, and Sergeant Allgood carried Inmate Johnson away from the main cells to an observation room, which would minimize his disruption to other inmates and allow him to be treated by medical personnel to ensure that no physical harm had come to him as a result of the incident. 7. After Inmate Johnson was placed in the observation room, Sergeant Allgood walked down the hallway and opened a locked metal gate to allow the CJC personnel who had responded to the Code Red into the SMU. Several personnel responded to the Code Red, including Mr. Hales, Sergeant Lionel Farley, Sergeant Curtis Barnes, Officer Carrie Ball, Officer Hal Van Metre, and Nurse Kim Masters. 8. Nurse Masters went to the SMU to ensure that no officer was hurt during the Code Red. When she arrived, based upon the smell, Nurse Masters realized that a chemical spray had been used on the inmate. Nurse Masters immediately left the SMU and the 5 th Floor to retrieve her medical equipment from the nurses station on the 2 nd Floor so that she could return with this equipment to check Inmate Johnson s vital signs. A Code Green, which is called when 3

an inmate needs medical attention, was not called in this incident. Nurse Masters returned and completed a medical assessment of Inmate Johnson after the officers told her she could do so. 9. When Mr. Hales and the other officers arrived at the SMU observation room, Inmate Johnson was contained in the observation room alone and totally isolated from any other inmates. Inmate Johnson was still under the debilitating effects of chemical spray. The observation room door was closed and secured shut via a slide lock/latch on the outside of the door. Inmate Johnson was on the floor secured by both leg shackles and wrist restraints, which were applied behind the back. Inmate Johnson was complaining about one of his legs hurting due to the force used by Corporal Bass and Officer Wilkerson, and continued to make noise and remain non-compliant. 10. In response to the Inmate Johnson s yelling, Mr. Hales instructed the inmate to be quiet multiple times, profanely shouting at the inmate to shut up. 11. Mr. Hales observed Inmate Johnson struggling to stand up from outside the observation room. 12. While Inmate Johnson was on the floor in the observation room, Mr. Hales had someone else unlatch the door and then he entered the room alone and gave several directives to Inmate Johnson to be quiet and stop trying to stand up. Failing to comply with these orders, Inmate Johnson again attempted to stand up. 13. In the presence of other DCSO officers, Mr. Hales then administered an immediate use of force by forcefully kicking Inmate Johnson in the leg. 14. Mr. Hales is not certain whether he kicked Inmate Johnson in the same leg that Inmate Johnson had been complaining was hurt just moments before Mr. Hales kicked him. 15. After the kick, Inmate Johnson became compliant. 4

16. Although Corporal Bass did not mention the kick by Mr. Hales in his use of force report, which was drafted immediately following the incident, he reported this kick in a hard copy report, which he gave to Daniel Robert Weikal, the Facility Administrator of the CJC. Administrator Weikal had Jamie Johnson, Chief of Security at the CJC conduct an investigation. 17. Uses of force are governed by DCSO s USE OF FORCE POLICY #1-4.455 (effective date 04/06/09) (hereinafter DCSO s USE OF FORCE POLICY ), which clearly requires that the [u]se of physical force is restricted to instances of justifiable self-defense, protection of others, protection of property, and prevention of escapes, and then only when there is no other reasonable option and in accordance with appropriate statutory authority. In no event is physical force justifiable as punishment. 18. DCSO s USE OF FORCE POLICY specifically differentiates between Immediate Uses of Force and Calculated Uses of Force. 19. DCSO s USE OF FORCE POLICY defines Immediate Use of Force as: Use of force when behavior constitutes an immediate, serious threat to the inmate, staff, others, or property, or to institutional security and good order. 20. DCSO s USE OF FORCE POLICY requires an Immediate Use of Force to adhere to the following procedural guidelines: Staff may immediately use an appropriate level of response when a subject s behavior constitutes an immediate serious threat to the employee, other people, property, or institutional security and good order. Employees may respond with or without the presence or direction of a supervisor. Video documentation will start immediately. 21. DCSO s USE OF FORCE POLICY defines Calculated Use of Force as: Use of force when a subject s behavior, past or present, presents a foreseeable need for use of force, or when a subject is isolated and presents no immediate direct threat to others. 5

22. DCSO s USE OF FORCE POLICY requires a Calculated Use of Force to adhere to the following procedural guidelines: Use of force may be calculated (planned) when a subject s behavior (past or present) presents a foreseeable need for use of force, or when compliance is necessary and the subject is isolated and does not present a direct threat to others, property, institutional security, or good order. The supervisor must be notified and staff must first determine whether the situation can be resolved without resorting to force. All calculated uses of force will be videotaped. 23. Mr. Hales had a foreseeable need for use of force on Inmate Johnson, as specified in the DCSO s USE OF FORCE POLICY pertaining to Calculated Use of Force, because Mr. Hales has known for years that inmates in SMU are more likely to be assaultive or problematic and Mr. Hales was responding to a Code Red, with which Mr. Hales is familiar, after an officer had been assaulted by the inmate. 24. The ability to foresee the need to use force is precisely why DCSO has a policy governing such actions. 25. The incident between Mr. Hales and the Inmate Johnson in the SMU observation room met DCSO s USE OF FORCE POLICY requirements for a Calculated Use of Force, if any force was to be used by Mr. Hales at all. 26. Mr. Hales did not follow DCSO s USE OF FORCE POLICY requirements for a Calculated Use of Force when he kicked Inmate Johnson. 27. Despite the fact that the inmate was not posing any immediate threat to any officer, nurse, inmate, other person, or even himself, Mr. Hales elected to use an Immediate Use of Force instead of a Calculated Use of Force. A Calculated Use of Force should have been used by Mr. Hales pursuant to DCSO s USE OF FORCE POLICY. 6

28. After the DCSO investigation of the incident, Mr. Hales was charged with violations of DCSO policies and violations of the Civil Service Rules, as outlined in the Charge Letter of September 13, 2010. 29. On September 21, 2010, DCSO held a disciplinary hearing, at which time it was determined that Mr. Hales violated DCSO s USE OF FORCE POLICY by using an immediate use of force instead of a calculated use of force. 30. DCSO determined that Mr. Hales was guilty of violating DCSO s USE OF FORCE POLICY as well as Civil Service Rule 6.7 (11) for the violation of written rules, policies or procedures of DCSO. DCSO provided Mr. Hales with notice of that determination in the Decision Letter of September 22, 2010. 31. Mr. Hales past disciplinary history includes: A. four (4) written reprimands: (1) 12/14/09 internet abuse; (2) 10/27/09 neglect of duty; (3) 3/30/98 absenteeism and tardiness and violation of civil service rules; and (4) 1/6/97 failure to follow orders and absenteeism and tardiness; and B. three (3) suspensions: (1) 10/25/07 three-day suspension for leaving the building unattended; (2) 4/8/98 five-day suspension for conduct unbecoming of an employee and for insubordination toward a supervisor; and (3) 7/17/96 fifteen-day suspension for unnecessary/excessive use of force. 32. As a result of the violation of these policies and Mr. Hales past disciplinary history, DCSO issued Mr. Hales a five-day suspension and demotion from his position as a Lieutenant. 33. Mr. Hales appealed the decision of the DCSO disciplinary hearing to the Civil Service Commission. 7

34. The DCSO Use of Force Panel ( Panel ) reviewed the July 25, 2010, use of force against the Inmate Johnson based upon the reports that were prepared by Mr. Hales and other officers after the incident with Inmate Johnson subsided. The Panel reviewed the reports, which primarily focused on the initial use of immediate force by Corporal Bass, Officer Wilkerson, and Sergeant Allgood. The Panel determined that the particular use of force by Corporal Bass, Officer Wilkerson and Sergeant Allgood on Inmate Johnson was appropriate and within the guidelines of DCSO s USE OF FORCE POLICY. The kick administered by Mr. Hales was not the subject of the Panel s use of force review. 35. In reviewing the use of force reports, the Panel members failed to notice that one of the reports mentioned the kick administered by Mr. Hales. Chief of Security, Kevin Cox, who chairs the Panel, explained that if the members of the Panel had noticed the reference to Mr. Hales kick, then the panel would have requested more information regarding the kick before closing out its review of the incident. 36. The determination issued by the Panel is not the same thing as a finding from the disciplinary board after a disciplinary hearing. ANALYSIS and CONCLUSIONS OF LAW Metro argues that Mr. Hales violated the DCSO USE OF FORCE POLICY and Civil Service Rule 6.7 (11) for the violation of written rules, policies or procedures of the DCSO. The DCSO USE OF FORCE POLICY provides, in relevant part, as follows: Any and all uses for force must be reasonable and necessary. Every effort shall be made to prevent and defuse situations that might require the use of force. If force becomes necessary, only the minimum amount of force required will be used to control the situation. All security and custody personnel will be trained and certified in D.C.S.O. approved methods of self-defense and the use of force as a last resort to control inmates.... 8

Immediate Use of Force Staff may immediately use an appropriate level of response when a subject s behavior constitutes an immediate serious threat to the employee, other people, property, or institutional security and good order. Employees may respond with or without the presence of direction of a supervisor. Video documentation will start immediately.... Calculated Use of Force Use of force may be calculated (planned) when a subject s behavior (past or present) presents a foreseeable need for use of force, or when compliance is necessary and the subject is isolated and does not present a direct threat to others, property, institutional security, or good order. The supervisor must be notified and staff must first determine whether the situation can be resolved without resorting to force. All calculated uses of force will be videotaped. DCSO USE OF FORCE POLICY #1-4.455 (effective date 04/06/09) (herein DCSO s USE OF FORCE POLICY ) HRG Ex. 1. As found above, despite the fact that Inmate Johnson was not posing any immediate threat to any officer, nurse, inmate, other person, or even himself, Mr. Hales elected to use an Immediate Use of Force instead of a Calculated Use of Force when he kicked Inmate Johnson on July 25, 2010. This immediate use of force by Mr. Hales was in violation of the DCSO s USE OF FORCE POLICY. Based upon the requirements of the DCSO s USE OF FORCE POLICY and the evidence presented during the hearing, it is determined that the kick of Inmate Johnson by Mr. Hales in the SMU observation room met DCSO s USE OF FORCE POLICY requirements for a Calculated Use of Force not the requirements for an Immediate Use of Force. Although Mr. Hales argues that a kick in the form of an immediate use of force was appropriate, other DCSO officers who testified disagree with Mr. Hales interpretation of DCSO s USE OF FORCE POLICY. Chief Johnson, Mr. Hales immediate supervisor, explained that Mr. Hales violated policy by failing to handle Inmate Johnson with a Calculated Use of Force. Similarly, Administrator Weikal, the next supervisor up Mr. Hales chain of command, opined 9

that Mr. Hales did not even need to enter the room with the restrained and isolated inmate. Administrator Weikal further opined that Mr. Hales violated DCSO s USE OF FORCE POLICY by failing to handle Inmate Johnson with a Calculated Use of Force. Administrator Weikal explained that the basis for his opinion was the fact that the inmate posed no immediate threat, as specifically required for immediate uses of force under the DCSO USE OF FORCE POLICY. Likewise, Sgt. Farley and Officer Bass, both of whom observed Mr. Hales kick Inmate Johnson, opined that Mr. Hales violated DCSO s USE OF FORCE POLICY by failing to deploy a Calculated Use of Force. Mr. Hales self-serving testimony is found to be less credible than the testimony of Chief Johnson, Administrator Weikal, Sgt. Farley and Officer Bass. It is concluded that Mr. Hales violated the DCSO s USE OF FORCE POLICY by failing to deploy a Calculated Use of Force when he kicked Inmate Johnson. In addition, this same conduct by Mr. Hales constitutes a violation of Metro Civil Service Rule 6.7 (11) pertaining to the violation of written rules, policies or procedures. The five-day suspension and demotion are found to be appropriate discipline for Mr. Hales conduct. This level of discipline is the minimum that should be given in this situation in light of the facts that Mr. Hales had previously been given a fifteen-day suspension for unnecessary/excessive use of force and as the Lieutenant for the CJC at the time of the incident, Mr. Hales job duties included overseeing all calculated use of force situations. It is apparent from his conduct and testimony that Mr. Hales does not have a proper understanding of the DCSO USE OF FORCE POLICY. Without such an understanding, Mr. Hales should not be placed in a position to supervise others during calculated use of force situations. Accordingly, it is determined that Metro has shown by a preponderance of the evidence that Mr. Hales violated the DCSO USE OF FORCE POLICY and civil service rules. It is further 10

determined that the five-day suspension and demotion of Mr. Hales was appropriate discipline and it is hereby UPHELD. It is so ORDERED. This INITIAL ORDER entered and effective this the day of 2011. MARY M. COLLIER ADMINISTRATIVE JUDGE ADMINISTRATIVE PROCEDURES DIVISION OFFICE OF THE SECRETARY OF STATE Filed in the Administrative Procedures Division, Office of the Secretary of State, this the day of 2012. THOMAS G. STOVALL, DIRECTOR ADMINISTRATIVE PROCEDURES DIVISION OFFICE OF THE SECRETARY OF STATE 11