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State2/25/2005
of theft, or that quantities of these items actually were missing from the DOC.
In addressing the allegations of the theft of the blankets and towels, the arbitrator found that, although Mr. Algasso did not dispute possessing the items, his method of obtaining them fell short of theft. The arbitrator noted that the DOC kitchen employees had engaged in an "extensive and long-term 'bootlegging'" of MHRH towels and linens for use in the DOC kitchen. The arbitrator noted that this "bootlegging" procedure appeared "somewhat shady," and involved getting access to the area where these towels and linens were stored by removing "loose boards." The arbitrator also noted that the towels were placed underneath food items to prevent spills while these food items were transported by the DOC kitchen staff, including Mr. Algasso, and that Mr. Algasso used the blankets when he slept in his vehicle at the prison in periods of inclement weather. Furthermore, the arbitrator noted that there was no evidence that the DOC ever instructed any of its employees to treat the items "in any manner other than as disposable items to be used and discarded." The arbitrator reasoned that "the method of obtaining, using, and disposing of MHRH towels and blankets was such as to encourage viewing them as essentially disposable items of little or no value," and thus, Mr. Algasso had a reasonable basis to view them as disposable.
Concerning the allegations of drug possession, the arbitrator found that the absence of any laboratory tests establishing that the seized materials were illegal substances, combined with the "full deference" the arbitrator gave to the suppression justice's "scathing criticism of the investigators," was fatal to the state's attempt to prove this allegation.
In regard to the allegation of an illegal cable television hookup, the arbitrator noted that RIBCO had asserted, without rebuttal, that obtaining cable television channels illegally is a misdemeanor. The arbitrator emphasized that the DOC director testified that "there are correctional officers who have been convicted of misdemeanor offenses that remain on the job because those offenses have been * * * off duty misconduct which there wasn't a direct nexus to their employment in some of those incidents." The arbitrator concluded that Mr. Algasso's illegal cable hookup was a misdemeanor that occurred off duty and did not constitute a direct nexus to his employment, and thus did not represent just cause for termination.
On January 8, 2002, the arbitrator issued a written decision on the remedy for DOC's wrongful termination in which he reinstated Mr. Algasso effective April 25, 1993, to March 12, 1997, with full back pay ("less any and all outside earnings"), benefits, and statutory interest. The arbitrator granted the DOC sixty days from the date of the remedy award to take action in response to Mr. Algasso's 1997 nolo plea. On March 5, 2002, the DOC held a pre-disciplinary hearing addressing the effect of said plea on Mr. Algasso's employment. On March 8, 2002, the current director of the DOC, Ashbel T. Wall, notified Mr. Algasso that he was being fired, effective April 8, 1995, the alleged date of the criminal conduct. On April 3, 2002, Mr. Algasso tendered his resignation, effective March 11, 1997, the day before his nolo plea.
On April 5, 2002, pursuant to G.L. 1956 § 28-9-18, the state filed a motion in Superior Court to vacate the arbitrator's award. Shortly thereafter, RIBCO filed a countermotion to confirm the arbitrator's award. The state argued that the arbitrator's findings were irrational, that the arbitrator exceeded his authority, and that the arbitrator improperly substituted his judgment for that of the
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