TENNESSEE BOARD OF PROBATION AND PAROLE, Agency/, Petitioner, Vs. RICKY FRANK, Grievant/, Respondent

University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 4-8-2008 TENNESSEE BOARD OF PROBATION AND PAROLE, Agency/, Petitioner, Vs. RICKY FRANK, Grievant/, Respondent 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 TENNESSEE CIVIL SERVICE COMMISSION TENNESSEE BOARD OF PROBATION ) AND PAROLE, ) ) Agency/Petitioner, ) ) Docket No. 26.41-096760J Vs. ) ) RICKY FRANK, ) ) Grievant/Respondent. ) INITIAL ORDER This case was heard on April 8, 2008, in Memphis, Tennessee, before Anthony Adgent, Administrative Judge, assigned by the Secretary of State, and sitting for the Civil Service Commission for the State of Tennessee. Ms. Karen Tolbert represented The Board of Probation and Parole. The Grievant represented himself. At the conclusion of the hearing, the matter was taken under advisement pending submission of the parties Proposed Findings of Fact and Conclusions of Law. Upon consideration of the record, the evidence and the arguments submitted by the parties, it is determined that the Petitioner s five day suspension of Respondent was appropriate based upon the Respondent s actions. This determination is based on the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Grievant Ricky Frank has been employed as a Probation and Parole Officer 2 (PPO 2) by the Tennessee Board of Probation and Parole since 2001 (Tr. 47, 162). At the time of the hearing, he was stationed at the Board s District office located at 32 West E.H. Crump in Memphis (Tr. 163).

2. The duties of a PPO 2 include supervision and monitoring of offenders; collecting prior arrest and conviction information from various sources; attending pre-service and in-service training to learn Board policies and procedures (Tr. 47-48; Ex. 2, pgs. 2, 3). 3. In a letter dated April 26, 2007, the Board informed Grievant of its intent to suspend him for five (5) days without pay for the following disciplinary offenses under Department of Human Resources Rules 1120-10-.06: (1) Inefficiency or incompetency in the performance of duties; (2) Negligence in the performance of duties; (4) Failure to maintain satisfactory and harmonious working relationships with the public and fellow employees; (8)... conduct unbecoming an employee in the State service; (12) Participation in any action that would in any way seriously disrupt or disturb the normal operation of the agency... or that would interfere with the ability of management to manage; and (18) Refusal to accept a reasonable and proper assignment from an authorized supervisor (insubordination) (Technical Record; Coll. Ex. 1, pg. 3). 4. All probation and parole officers, regardless of their experience level, are supposed to document any actions taken regarding a particular offender in the Tennessee Offender Management Information System (TOMIS) (Tr. 48-49, 56, 59-60, 79; Ex. 3, pgs. 2, 3, 4). 5. All probation and parole officers are trained regularly on Board policies (Tr. 47-48; Ex.). 6. These policies include the following topics: Responsibilities of Probation and Parole Officer 1-3; Offender Intrastate Transfers; Offender TOMIS Transactions; Content of Offender Case Files; Supervisory Review of Caseloads; and Offender Contact Notes (Tr. 46, 50, 55, 57, 60, 64; Ex. 3, 4, 5, 6, 7, 8). The Board also promulgates manuals on various topics, including a TOMIS Manual, which demonstrates in detail how to make certain types of entries about offenders (Tr. 56). 7. The Board keeps a training log for each of its employees, and this includes one for 2

Grievant (Coll. Ex. 18). 8. The training log record indicated and Grievant confirmed at the hearing that he received training on the following topics on the listed dates: Professionalism by Attitude on February 18, 2003 (Tr. 164-165; Coll. Ex. 18, p. 1); Board Policy 706.03 Contact Notes on May 26, 2004 (Tr. 165; Coll. Ex. 18, pg. 2); Offender Intrastate Transfer on May 11, 2004 (tr. 165-166; Coll. Ex. 18, pg. 2); etomis on January 22, 2004 (Tr. 166; Coll. Ex. 18, pg. 2); and Contact Codes Doc. and Offender on January 30, 2007 (Tr. 166; Coll. Ex. 18, pg. 4). Grievant received preservice training at the Tennessee Correction Academy as well as in-service training for the Board s policies and procedures over his time with the Board (Tr. 164, 167). 9. District Director Helen Ford testified at the hearing about the circumstances surrounding Grievant s suspension (Tr. 18-83). Ms. Ford, as the Board s District Director in Shelby County, has ultimate supervisory responsibility for all of the employees working in Shelby County (Tr. 18). She has worked for the Board for over twenty (20) years, having begun as a Probation and Parole Officer 1 (PPO 1) (Tr. 18-19). As part of Ms. Ford s responsibilities, she reviews supervisors requests for disciplinary action against employees in her district (Tr. 19). 10. In this particular instance, Ms. Ford prepared a memorandum giving more detail about the various allegations against Grievant (Tr. 23-24; Ex. 2). She also receives copies of all disciplinary action letters for her District employees that are sent out from the Board s Central Office in Nashville (Tr. 20; Coll. Ex. 1). 11. In keeping with that practice, Ms. Ford received copies of official disciplinary correspondence from the Board s Central Office relating to Grievant s five (5) day suspension (Tr. 20-21; Coll. Ex. 1). 3

12. In a letter dated April 26, 2007, the Board informed Mr. Frank of its intention to suspend him for five (5) days for the following reasons: (1) not submitting offender files to his supervisor for review before transferring the files to another officer; (2) not submitting new files for initial file checks within the first sixty (60) days [after assignment]; (3) improperly transferring an offender file to another officer and not following supervisor s directive to recreate that offender s file; and (4) not responding to his supervisor s request to receive ten (10) of his files for transfer to another officer (Tr. 20; Coll. Ex. 1, pgs. 1-3). 13. After Grievant s due process hearing was held on May 8, 2007, the Board upheld Grievant s five-day suspension and set the suspension dates in a letter dated June 1, 2007 (Tr. 20-21; Coll. Ex. 1, pgs. 4-6). 14. In a letter dated July 24, 2007, the Board upheld Grievant s suspension after his Level IV hearing (Tr. 21; Coll. Ex. 1, pgs. 7-9). 15. The Board specifically alleged that Grievant improperly transferred certain cases that were absconder cases, cases with pending warrants, and cases with offenders in custody for more than six (6) months (Tr. 24-25; Ex. 2, pg. 1). 16. Ms. Ford testified that managers are supposed to manage the caseloads and remove cases from caseloads requiring less work so that officers can focus on active cases (Tr. 25). Inactive cases only require checking for new arrests or any other new developments (Tr. 25). Certain people in each office are designated to maintain these inactive cases so that officers can focus on the active cases (Tr. 25). Supervisors can request that their officers select a certain number of cases for transfer to another officer or an officer can ask his/her supervisor for permission to transfer cases to another officer (Tr. 26, 28). 4

17. Officers in each office know which officers handle the inactive cases, and can also go to a supervisor to ask for permission to transfer those cases (Tr. 27). Absconder cases do not require as much work as an average caseload (Tr. 28). 18. On direct and cross-examination, Ms. Ford testified to the importance of entering all collateral contacts with or discussions about an offender into the Tennessee Offender Management Information System (TOMIS) (Tr. 27, 79, 80). 19. The Board has three (3) policies that state that TOMIS entries are the official agency record of all actions taken regarding any offender supervised by the Board: Index #706.04, Offender TOMIS Transactions; Index #706.01, Content of Offender Case Files, and Index #706.03, Offender Contact Notes (Tr. 55-56; Ex. 5, 6, 8). Use of TOMIS is important so that the Board can know what is happening with a particular offender s supervision at any time (Tr. 79). 20. Ms. Shirley Minor, Grievant s supervisor at the time of these allegations, testified at the hearing (Tr. 84-161). She supervised Grievant for approximately two (2) years from the Board s North Memphis office located at 2584 Overton Crossing (Tr. 86). 21. Ms. Minor has worked for the Board for over twenty (20) years, starting out as a Parole Officer 1 (Tr. 85). Her official job title while she supervised Grievant and at the time of the hearing was Probation and Parole Manager 1 (PPM 1) (Tr. 85). She currently supervises eight (8) officers and also acts as the Administrative Manager in the District s Overton Crossing office (Tr. 85). 22. At first, Ms. Minor and Grievant had a good working relationship (Tr. 86-87). However, the working relationship became much more unpredictable (Tr. 87). Grievant would question Ms. Minor s instructions or not respond to her requests for information (Tr. 87). Throughout this decline in the working relationship, Ms. Minor continued to try to work with Grievant (Tr. 88). 5

Her expressed intention was to help Grievant as his supervisor, not to harm him (Tr. 88, 89, 140). Ms. Minor was Grievant s supervisor at the time of the five-day suspension, but was no longer his supervisor at the time of the hearing (Tr. 89). 23. The Board alleged that Grievant did not properly submit absconder cases to his supervisor for approval (Tr. 23; Coll. Ex. 1). 24. Ms. Minor testified that she attended and prepared minutes of a staff meeting in the Overton Crossing office on September 21, 2006 (Tr. 89; Ex. 9). Ms. Minor was present at this meeting; however, Grievant was not (Tr. 91; Ex. 9). Ms. Minor testified that staff meetings are held regularly, once or twice a month (Tr. 90). Regardless of who is present, the minutes are distributed to all staff in the office (Tr. 91). 25. At the staff meeting on September 21, 2006, there was discussion of transfer of absconder cases (Tr. 92; Ex. 9, p. 2). Officers were informed that they should send absconder cases to their supervisor for approval before submitting them to two (2) staff members who collectively managed the absconder cases (Tr. 92; Ex. 9, p. 2). This was an ongoing practice in the office (Tr. 93-94). 26. Ms. Minor would also initiate requests to officers (usually via e-mail) to submit absconder cases to her (Tr. 94). 27. On October 28, 2006, Ms. Minor e-mailed Grievant and other officers a request that each officer transfer files in warrant status, absconder cases, and those in custody for more than six months to one of the two designated absconder case managers by November 6, 2006 (Tr. 95; Coll. Ex. 10, p. 1). 28. Ms. Minor did not receive a response from Grievant (Tr. 96). 6

29. On November 8, 2006, Ms. Minor sent another e-mail to Grievant making the same request she had initially made on October 28, 2006 (Tr. 95-96; Coll. Ex. 10, p. 2). Ms. Minor testified that Grievant told her that he did not know how to transfer files, so she attempted to show him how to do it (Tr. 96-97). 30. On or about November 29, 2006, Ms. Minor received a written note from Angela Chillis (one of the designated absconder case handlers) informing her that Grievant had transferred several offenders to Ms. Chillis caseload on November 9, 2006 (Tr. 97, 98; Ex. 11). Prior to this time, Ms. Minor was not aware that Grievant had transferred these cases to Ms. Chillis caseload without Ms. Minor s approval (Tr. 103-104). 31. Ms. Minor handwrote on this note a reminder to Grievant that he was supposed to place the files in her box for transfer, no file should be transferred without review, and files should not be placed on another officer s caseload without approval (Tr. 98; Ex. 2). Ms. Minor s handwritten note was dated December 1, 2006 and she delivered it to Grievant on that date (Tr. 98-99; Ex. 11). When Ms. Minor delivered the note to him, he was working on his computer and did not turn around to acknowledge her (Tr. 99). 32. Grievant did not recall receiving a copy of the staff meeting minutes documenting the transfer of absconder cases (Tr. 170-171; Ex. 9). Likewise, Grievant did not recall the list of absconder cases he had improperly transferred to another officer without permission that contained Ms. Minor s handwritten notes dated December 1, 2006 indicating the requirement that she approve the transfer of cases (Tr. 170-171; Ex. 11). 33. The Board made another allegation that Grievant improperly handled the transfer of a probationer on his caseload, Charles Brown (Tr. 30; Coll. Ex. 1). 7

34. Mr. Brown was living in Shelby County, Tennessee; however, the Court had ordered Mr. Brown to return home to Ripley, Tennessee (Tr. 104). Mr. Brown was assigned to Grievant s caseload (Tr. 105, 174). 35. On or about December 20, 2006, Grievant made a request to Ms. Minor to transfer Mr. Brown back home to Ripley, Tennessee (Tr. 104-105; Coll. Ex. 12, p. 1). Ms. Minor forwarded that request which ultimately went to an officer in the Board s Dyersburg office who was assigned to conduct the investigation of the transfer (Tr. 105; Coll. Ex. 12, p. 1-5). Ms. Minor forwarded the Dyersburg office s requests for additional information about this transfer to Grievant (Tr. 106; Coll. Ex. 12, p. 6). 36. On April 2, 2007, Ms. Minor received an e-mail from Officer Dennis Coleman in the Dyersburg office informing her that Grievant had improperly assigned Mr. Brown to Officer Coleman s caseload in the LCD-3 screen in TOMIS (Tr. 107-108; Coll. Ex. 12, p. 7). 37. Officer Coleman further informed Ms. Minor that Mr. Brown s LIMD screen indicated that he was still supervised out of the Overton Crossing office (Tr. 107; Coll. Ex. 12, p. 7). The LCD-3 screen is the staff assignment screen that shows all cases assigned to a particular officer (Tr. 108). The LIMD screen is the arrival/departure screen, which shows an offender s movement or location (Tr. 108). A ZZZZ screen indicates that a supervisor has done some sort of review in a case (Tr. 108-109). 38. Ms. Minor responded to Officer Coleman on April 3, 2007, informing him that she was not previously aware of this situation and she would address this matter with Grievant (Tr. 109; Coll. Ex. 12, p. 8). 39. On April 4, 2007, Ms. Minor e-mailed Grievant and directed him to, if he could not find Charles Brown s file, get another copy of Brown s probation order from the Criminal Court and 8

rebuild the file (Tr. 110-111; Coll. Ex. 12, p. 9). The deadline for Grievant to complete this task and submit the file to Ms. Minor was the next day, April 5, 2007 at 10:00 a.m. (Tr. 111-112; Coll. Ex. 12. p. 9). She also showed Grievant how to use another computer system to retrieve another copy of the probation order (Tr. 111). 40. After Ms. Minor found the requested copy of the file it contained just the probation order. She told Grievant she needed additional information (Tr. 112). 41. On April 10, 2007 at approximately 8:15 a.m., Ms. Minor gave Grievant a copy of a contact note from Brown s file with additional handwritten instructions from Ms. Minor on the specific documents to add to Brown s file (Tr. 113-114; Ex. 13). The due date for the additional information was that same day at 12:00 noon (Tr. 114; Ex. 13). 42. Grievant informed her he was not going to do any more work on the file (Tr. 112, 115). 43. Because Grievant refused to complete this assignment, Ms. Minor completed the rebuilding of the file herself and sent it to the Dyersburg office (Tr. 112). She entered notes in TOMIS on April 12, 2007 indicating that she mailed the duplicate Brown file to Becky (Rebecca) Cashion in the Dyersburg office that day (Tr. 116-117; Coll. Ex. 14, p. 1-2). Ms. Cashion in the Dyersburg office entered a contact note in TOMIS on April 16, 2007 indicating that the Brown file had been received in the Dyersburg office (Tr. 117-118; Coll. Ex. 14, p. 3-4). 44. Grievant contended that he sent the file to Dyersburg in December (2006) (Tr. 173). He claimed to have notes to that effect, but he did not produce them at the hearing (Tr 45. Grievant also claimed to have placed duplicate copies of Brown s file in Ms. Minor s inbox on April 5, 2007 and April 11, 2007 (Tr. 208). 46. Grievant confirmed that he entered a contact note in TOMIS regarding Brown on December 20, 2006 (Tr. 174; Ex. 19). He confirmed that Brown was officially on his caseload at 9

that time (Tr. 174). Grievant also confirmed that he entered another contact note regarding Brown on February 27, 2007 (Tr. 175-176; Coll. Ex. 19, p. 3-4). This contact note indicated that Grievant had sent Brown s file to Rebecca Cashion in the Board s Dyersburg, Tennessee office in December 2006 (Tr. 175; Coll. Ex. 19, p. 3-4). Grievant could not explain why he entered a contact note about sending the Brown file to Dyersburg nearly two months after he allegedly did so (Tr. 175-176). He claimed to have entered a contact note before then, but did not produce it at the hearing (Tr. 176). 47. The Board also alleged that Grievant did not submit new files for review within the first sixty (60) days of assignment (Tr. 24-25; Coll. Ex. 1). 48. Board Policy Index # 706.02, Supervisory Review of Caseloads, specifically provision VI(C)(1), requires that supervisors must check case files to verify that certain documentation is in the file within sixty (60) days of the case assignment (Tr. 60-61; Ex. 7, p. 3). 49. Board Policy Index #706.01 also specifies the required contents of offender case files (Tr. 57; Ex. 6). 50. Ms. Ford testified that all officers know that it is their responsibility to submit the file to their supervisors for review within the first sixty days after the case is assigned to the officer (Tr. 62). The sixty-day window provides the officer sufficient time to have an initial meeting with the offender and get the required information assembled in the offender s file (Tr. 61-62). 51. Ms. Ford also explained the process for transferring cases to officers within the District (Tr. 62-65). The local Memphis courts send probation orders to the Board s office (Tr. 62). When the order is received, it is assigned that day by an e-mail sent to the officer with the case and docket number (Tr. 62). The orders are also put in the mail to various District offices on the same day (Tr. 62-63). The case is officially assigned to the officer as of the date of the e-mail 10

notification (Tr. 63). Once an offender is assigned to an officer, the officer goes into TOMIS and makes entries to officially assign the offender to the officer s caseload (Tr. 63-64). 52. According to Board Policy 706.03, Offender Contact Notes, the officer is supposed to start entering contact notes at the first collateral contact regarding the offender or the first initial meeting (Tr. 64-65; Ex. 8). Ms. Ford testified that an officer should have already assigned the offender to the officer s caseload in TOMIS before entering the first contact note (Tr. 65). 53. Ms. Minor testified about Mr. Frank s failure to submit cases to her within sixty days of being assigned to him (Tr. 121-128). 54. The probation orders are sent to the managers that supervise the officers that various offenders are assigned to (Tr. 121). Ms. Minor testified that she usually records the date that each Order is received for the people that she supervises (Tr. 121). 55. In keeping with that practice, Ms. Minor identified LCD-3 screens, or staff assignment screens, for three offenders on Grievant s caseload: Otis Street, Jr., David Hawkinson, and Rickey Tartt (Coll. Ex. 15, p. 1-3). She also identified three copies of contact note screens from the same three offenders where she handwrote the date that the physical Order was received (Coll. Ex. 15, p. 4-6). 56. According to the LCD-3 screens in TOMIS, the same three offenders were assigned to Grievant s caseload on the following dates: Otis Street on January 25, 2007; David Hawkinson on February 12, 2007; Rickey Tartt on February 14, 2007 (Tr. 122-123; Coll. Ex. 15, pg. 1-3). Ms. Minor also handwrote dates that she received the actual Orders for the same offenders (Tr. 124-125; Coll. Ex. 15, p. 4-6). 57. The assignment date in TOMIS on the LCD-3 screen reflects information entered by the officer (Tr. 126). Ms. Minor testified that she did not receive offender files on Street, 11

Hawkinson, or Tartt from Grievant within sixty days from the date the offenders were assigned to Grievant (Tr. 127-128). 58. Grievant admitted that he had not submitted all new files within the sixty-day timeframe (Tr. 179, 182; Ex. 20, 21, 22). 59. Grievant s contact notes regarding Otis Street, Jr., David Hawkinson, and Rickey Tartt did not indicate that he submitted the files to Ms. Minor for review within the first sixty (60) days of assignment (Tr. 179, 181-182; Ex. 20, 21, 22). 60. Grievant claimed that he could not meet this deadline because of his high caseload (Tr. 179, 182, 199). 61. The Board also alleged that Grievant did not submit case files to his supervisor for transfer to new officers as requested on April 3, 2007 (Tr. 34; Coll. Ex. 1). 62. Ms. Ford testified that caseloads are assigned by zip code, therefore, the number of cases that come from the courts of Shelby County to a particular office can fluctuate depending on police activity (Tr. 36-37, 40). Certain zip codes are assigned to certain offices within the District (Tr. 41). The cases are assigned to officers according to a rotation list according to the officer s case numbers (Tr. 38-39). The next person on the list gets the next case that comes from the Courts (Tr. 38). Caseloads are monitored and cases are periodically transferred from one officer to another to level the case numbers (Tr. 37). 63. Since all types of cases do not require the same amount of work, managers take a detailed look at the officer s caseload through an Exception Compliance Report (Tr. 40). This report breaks the caseload down into categories, i.e. how many cases, how many absconder cases, how many in warrant status (Tr. 40). This is done to help the officers manage their caseload and not get overwhelmed with too many cases (Tr. 41). Some officers attempt to keep an artificially 12

high caseload, called padding the caseload in order to avoid getting assigned new cases (Tr. 39). Ms. Ford testified about her personal examination of Mr. Frank s caseload (Tr. 33-36). As of April 30, 2007, Grievant had one hundred and thirty-nine (139) offenders on his caseload (Tr. 33; Ex. 2, p. 2). Of that number, twenty-four (24) were absconders and five were in warrant status (Tr. 33-34; Ex. 2, p. 2). 64. The absconder and warrant status cases should not have been on Mr. Frank s caseload and should have gone to another unit or officer (Tr. 33-34; Ex. 2, p. 2). With the removal of those cases, Ms. Ford testified that Grievant should have had a caseload of ninety-five offenders in April 2007 (Tr. 35; Ex. 2, p. 2). 65. Ms. Minor testified that on April 3, 2007 she sent Grievant and two other officers an e- mail asking each recipient to submit ten (10) cases to her for transfer to new officers (Tr. 129; Ex. 16). She asked that the cases be submitted by April 9, 2007 (Tr. 131; Ex. 16). The e-mail also stated that files should be current and reviewed by a supervisor prior to transfer (Tr. 130; Ex. 16). Ms. Minor asked the officers to let her know if they had any questions or suggestions. (Ex. 16). 66. She had made the request to help balance officer caseloads, targeting those with the highest caseloads first (Tr. 132). 67. Grievant never responded to Ms. Minor s request for ten transfer cases (Tr. 132). The request. (Tr. 132). 68. Grievant contended that he actually did submit the requested files to Ms. Minor on April 5, 2007 (Tr. 184, 207). However, Grievant admitted that he did not have any contact notes, handwritten notes, or other documentation to that effect (Tr. 184, 185, 186, 215). 13

69. Ms. Ford testified extensively about her opinion about Ms. Minor as a supervisor (Tr. 66-70). She rates Ms. Minor as an excellent supervisor who supports her employees (Tr. 66, 67). Ms. Minor has been known to do things for the entire office to express her thanks, including giving certificates to all employees in the office to show her appreciation (Tr. 68). Before reporting any problems to Ms. Ford or writing up an employee, Ms. Minor tries various methods such as training and repeated meetings to address the issue at hand (Tr. 69). Ms. Ford testified that Ms. Minor does not take disciplinary action against an employee lightly (Tr. 70). 70. On April 3, 2007, Ms. Minor conducted a performance evaluation of Grievant (Tr. 133; Ex. 17). This was one of her duties as his supervisor (Tr. 134). The performance evaluation addressed several areas of Grievant s work performance, including his cooperation with coworkers, ability to follow directions, and case documentation (Tr. 134; Ex. 17). His overall rating was a 2, or marginal (Tr. 134, 136; Ex. 17). 71. Ms. Minor discussed Grievant s evaluation with him (Tr. 136). Ms. Minor rated Grievant a 2 or marginal in the following areas: cooperation with coworkers; following directions; preparing violation reports; documentation of case records; and report writing (Tr. 137-139; Ex. 17). 72. The evaluation was based on her evaluation of his work as a PPO 2 (Tr. 140). CONCLUSIONS OF LAW 1. The Board of Probation and Parole, as the party that initiated these proceedings, is the Petitioner and has the burden of proving this matter to a preponderance of the evidence. 2. A State employee may be disciplined for (1) causes relating to performance of duty, or (2) causes relating to conduct which may affect an employee s ability to successfully fulfill the requirements of the job. Rule 1120-10-.05, Tenn. Comp. R. & Regs. As stated in the Rules, A 14

career employee may be warned, suspended, demoted or dismissed by his appointing authority whenever just or legal cause exists. The degree and kind of action is at the discretion of the appointing authority Rule 1120-10-.02, Tenn. Comp. R. & Regs. Disciplinary action must be administered at the most appropriate step based on the misconduct. See Rule 1120-10-.07, Tenn. Comp. R. & Regs. and Tenn. Code Ann. 8-30-330. 3. The Tennessee Department of Human Resources has promulgated rules that list certain conduct by State employees that might lead to disciplinary action, up to and including termination. Specifically, Rule 1120-10-.06 lists the following as specific examples of conduct that is prohibited of State employees: disciplinary offenses under Department of Human Resources Rules 1120-10-.06: (1) Inefficiency or incompetency in the performance of duties; (2) Negligence in the performance of duties; (4) Failure to maintain satisfactory and harmonious working relationships with the public and fellow employees; (8)... conduct unbecoming an employee in the State service; (12) Participation in any action that would in any way seriously disrupt or disturb the normal operation of the agency... or that would interfere with the ability of management to manage; and (18) Refusal to accept a reasonable and proper assignment from an authorized supervisor (insubordination). 4. The Board has its own internal policies that govern agency procedures. The Board has policies that govern all areas of agency business, including the handling of offender cases and intra-agency procedures. These policy topics include: duties of a probation and parole officer; use of the Tennessee Offender Management Information System (TOMIS) and contact notes; and transferring offender cases. The Board also promulgates manuals on the use of TOMIS and various other topics. 15

5. The Board successfully argued that Grievant failed to follow agency policy in not submitting absconder cases to his supervisor for approval. Administrative finders of fact can assess the credibility of a witness in an administrative hearing. Price vs. Tennessee Civil Service Commission, 1997 WL 203603 (Tenn. Ct. App. 1997). The District Director Helen Ford and Grievant s direct supervisor at the time of allegations, Shirley Minor, testified extensively at the hearing. Both have been employed in the probation/parole business for decades. Ms. Ford testified at the hearing about the Board s general practice of having managers monitor their officers caseloads. This monitoring practice includes reviewing and approving or disapproving the transfer of certain types of offender cases. Each case does not require the same amount of work on the part of an officer. Cases can become inactive if an offender goes into warrant status or becomes an absconder. Since these types of cases do not require as much work as active supervision cases, the inactive cases are transferred to designated officers in each office. Supervisors can ask officers to transfer certain types of cases in order to keep their focus on active cases. Management staff regularly reiterates the transfer of absconder cases through regular review of policies with individuals as needed and in office staff meetings. Ms. Ford was credible as a witness. 6. Ms. Minor was also credible as a witness. Her credibility as a witness was bolstered by Ms. Ford s assessment of Ms. Minor as a supervisor. Ms. Ford testified that Ms. Minor was very supportive of her employees and was regularly doing things to help her employees. Ms. Ford rated Ms. Minor as an excellent supervisor, one who resorts to employee discipline only after trying all other alternatives to help an employee. Ms. Minor testified at length about her specific actions to inform officers about the absconder transfer practices and her dealings with Grievant regarding his improper transfer of absconder cases without her permission. Ms. Minor prepared 16

minutes of a staff meeting at Overton Crossing on September 21, 2006 in which the transfer of absconder cases was discussed. She distributed these minutes to everyone in the office, including Mr. Frank. Officers were regularly informed that absconder cases needed to be submitted to a supervisor for approval before transfer. In this instance, Ms. Minor engaged in her usual practice of using e-mail to communicate a request for several officers, including Grievant, to submit cases in warrant status, absconder cases, and six-month plus custody cases to designated officers. She sent this request in October 2006. Grievant did not respond to the first request. Therefore, Ms. Minor made a second request to the same effect. Since she had previously reiterated the Board policy of requiring supervisor approval for transfer of absconder cases, she reasonably expected Grievant to submit his proposed transfer cases to her first. Ms. Minor did not learn that Grievant had already transferred the cases to another officer until she received a note to that effect from the officer to whom the cases were transferred in November 2006. 7. Upon learning of Grievant s actions, Ms. Minor gave him a written note reminding him yet again of the fact that case transfers were not to be done without supervisor review, nor were files to be placed on another officer s caseload without approval. She delivered this note to Grievant two days after learning of the situation. In addition to directly flouting Ms. Minor s authority as his supervisor in transferring the cases without her permission, Grievant refused to acknowledge her presence when she delivered this written reminder to him in person. Grievant was negligent in his duties and insubordinate in improperly transferring the cases and also in his dismissal of Ms. Minor s attempt to communicate with him about it. 8. Grievant was not credible as a witness in his testimony regarding the transfer of the absconder cases. Grievant claimed to not recall receiving a copy of the staff meeting minutes 17

documenting the transfer of absconder cases. Nor did he recall the list of improperly transferred cases that also contained Ms. Minor s written instructions about case transfers. In any event, the Overton Crossing meeting minutes document that this practice was reiterated in the month before Ms. Minor made the request in question for absconder cases. Given Grievant s status as a PPO 2 since 2001, it is reasonable to expect that he knew about the requirement for supervisor approval before transferring cases. Since Grievant knew about the approval requirement and intentionally did not comply with it, he was negligent in his job duties and engaged in insubordination. The Court of Appeals of Tennessee upheld the suspension of an employee for insubordination for not responding to supervisor requests. Kelly vs. Tennessee Civil Service Commission, 1999 WL 1072566 (Tenn. Ct. App. 1999). 9. The Board successfully argued that Grievant improperly handled the transfer of an offender on his caseload, Charles Brown. Board Policy #708.01, Offender Intrastate Transfers, states that a supervisor is supposed to review and approve an offender for the possibility of an intrastate transfer before a request is even made of the office that would be receiving the offender. The offender is not transferred until officially accepted by the receiving office. Ms. Ford testified that if this procedure is not followed, then the Board will not know where an offender is under supervision. If the Board does not know where an offender is, then that negatively impacts community safety. 10. Ms. Minor followed the proper procedure in processing Grievant s initial request to transfer Charles Brown s supervision from Shelby County to Dyer County. She forwarded Grievant s request to the appropriate people in the Board s Dyersburg office so they could conduct the required investigation. 18

11. In similar fashion to Grievant s improper transfer of absconder cases, Ms. Minor did not learn that Grievant had already improperly transferred Brown s supervision in TOMIS to an officer in Dyer County until she received an e-mail from that officer on April 2, 2007. The officer informed Ms. Minor that one screen in TOMIS indicated that Brown was still supervised out of the Overton Crossing, while another screen in TOMIS showed that Brown was now on the staff assignment list of this officer in Dyer County. Ms. Minor took the matter up with Grievant immediately. She directed him to recreate Brown s file, starting with getting another copy of Brown s probation order from the Criminal Court. She gave him a deadline to complete the task and submit the file to her. When he submitted a file with just Brown s probation order and not the other necessary documents, Ms. Minor gave Grievant a written instruction to put specific documents in Brown s recreated file. Grievant specifically told her he would not do any more work on recreating Brown s file. In response to Grievant s direct refusal to finish this task, Ms. Minor recreated the Brown file herself and sent it to the Dyersburg office. She entered a contact note in TOMIS to this effect, and the officer that received the file in Dyersburg entered a contact note documenting receipt of the file. 12. Grievant claimed that he sent the physical Brown file to the Dyersburg office in December 2006. However, he did not make any entries in TOMIS to that effect. He made an entry in TOMIS in February 2007 claiming that he had sent the file to the Dyersburg office in December 2006. He also claimed to have given a duplicate copy of Brown s supervision file to Ms. Minor on two separate days in April 2007. Grievant did not provide any explanation of why he did not enter a contact note in TOMIS in December 2006, when he claimed to have sent the Brown file to the Dyersburg office. Similarly, Grievant could not explain why he entered a contact note in February 2007 documenting action that he claimed to have taken two months 19

prior. In transferring Brown s file in the offender database without approval and refusing to assist in recreating the offender s paper file, Grievant was negligent in his duties and insubordinate. 13. The Board also proved successfully that Grievant did not submit new files to his supervisor within sixty (60) days from assignment. Board Policy Index #706.02, Supervisory Review of Caseloads, is the source of this mandate. Board Policy Index #706.01, Content of Offender Case Files, specifies the documents that are to be included in each offender s file. Ms. Ford testified that all officers know that they are responsible for submitting the offender s file to their supervisor for review within the first sixty days. The sixty-day timeframe is designed to give the officer enough time to establish contact with the offender and compile the required information in the file. Ms. Ford also established that the Board receives probation Orders from the local Courts and has no control over the number received. When the main District Office receives the Order, it is mailed to various offices within the District according to zip code. The officer is sent an e-mail confirming that an offender has been placed on the officer s caseload. The sixty-day timeframe starts running from the date of the probation Order, which is also the date of the e-mail notice to the officer. Upon notification, the officer enters information into TOMIS to officially place the offender on the officer s caseload. The officer at this point would also start making any necessary contact notes in TOMIS about actions taken regarding a particular offender, in accordance with Board Policy 706.03, Offender Contact Notes. 14. Ms. Minor testified that the probation Orders are sent to managers in the district offices that supervise the officers. She regularly records the date that each Order is physically received for the officers under her supervision. However, the officer is not dependent on receipt of the actual probation Order in order to start assembling the offender s file. Ms. Minor identified three 20

(3) offenders under Grievant s supervision where she recorded the date that she received the probation Order. She testified that she did not receive the files on these three offenders within sixty (60) days of their assignment to Grievant s caseload. 15. Grievant admitted that he did not always submit new files to Ms. Minor within sixty days of assignment. He specifically admitted that he did not submit the files for the three offenders discussed at the hearing within the sixty-day timeframe. He contended that his high caseload prevented him from meeting this requirement. Through Grievant s own testimony, he admitted that he was negligent in doing this job duty and violating Board policy in not complying with this requirement. 16. The Board successfully argued that Grievant did not submit ten (10) files to Ms. Minor for transfer to a new officer in April 2007. Ms. Ford established how the Board attempts to balance officer caseloads in an objective manner. Cases are assigned to Board offices within Shelby County according to zip code. New cases are assigned to specific officers according to a rotation list, which simply assigns a new case to the next officer on the list. At the same time, managers monitor individual caseloads and will occasionally ask that officers select cases for transfer to another officer. This process is objective, yet it also takes individual officer needs into account. Managers regularly make a detailed examination of an officer s caseload through a report that breaks the caseload down into different types. Since certain types of cases do not require as much work as others, this information is taken into account when assigning cases. Ms. Ford personally examined Grievant s caseload and learned that as of April 30, 2007, he had several cases on his caseload that should have been transferred to other officers. Thus, he retained an official caseload that was much higher than it should have been. 21

17. Ms. Minor testified that she sent Grievant and two other officers an e-mail request to select ten (10) cases for transfer to new officers by a certain deadline. She stated that the files should be reviewed by a supervisor before transfer. Ms. Minor made this request in order to help Grievant lower his caseload. She had testified that she usually targeted those with a higher caseload first in order to help balance officer caseloads. Inexplicably, Grievant did not respond to this request by the stated deadline. He refused Ms. Minor s assistance. 18. Grievant claimed that he submitted the requested files to Ms. Minor. However, he did not produce any contact notes or other documentation to that effect. Given Grievant s pattern of not complying with Ms. Minor s requests, it is more likely than not that Grievant did not submit the requested transfer files for the new officer to Ms. Minor. In not doing so, Grievant displayed incompetence and negligence in his job duties and was insubordinate to Ms. Minor. 19. Therefore, it is ORDERED that the Board of Probation and Parole has proven by a preponderance of the evidence that Grievant engaged in conduct prohibited by Board policy and by the Rules of the Tennessee Department of Human Resources. Grievant s five-day suspension without pay is warranted under the Rule 1120-10-.06 of the Tennessee Department of Human Resources for the following reasons: (1) Inefficiency or incompetency in the performance of duties; (2) Negligence in the performance of duties; (4) Failure to maintain satisfactory and harmonious working relationships with the public and fellow employees; (8)... conduct unbecoming an employee in the State service; (12) Participation in any action that would in any way seriously disrupt or disturb the normal operation of the agency... or that would interfere with the ability of management to manage; and (18) Refusal to accept a reasonable and proper assignment from an authorized supervisor (insubordination). 22

This order entered and effective the day of, 2008. Anthony Adgent Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State this 28th day of July, 2008. Thomas Stovall, Director Administrative Procedures Division 23