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State2/25/2005
to theft, even though some of the items were obtained through the "somewhat shady" method of "bootlegging" and removing "loose boards." The arbitrator also 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 opined 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. We conclude, however, that such a result is not only irrational, it also impermissibly usurps the disciplinary function of the director.
The DOC Code of Ethics and Conduct, promulgated pursuant to the director's authority under G.L. 1956 § 42-56-10, prohibits the following conduct:
Section V(F)(7)(a): "Theft."
Section V(F)(9)(a): "Using state property, either by intention or through negligence, in a manner which causes damage or injury, or unnecessarily diminishes its value."
Section V(F)(9)(e): "Removing state property from departmental premises without the permission of a superior, or for other than the performance of one's duties."
The towels and linens clearly were state property, regardless of how Mr. Algasso obtained possession of them. The fact that the DOC lacked a specific policy prohibiting the use of MHRH linens does not equate with permission to remove the property from departmental premises. Furthermore, the fact that DOC employees may have considered the towels to be of little value is irrelevant. The DOC Code of Ethics and Conduct prohibits the theft or removal of state property regardless of the intent of the employee or its value. Furthermore, the DOC Code of Ethics and Conduct states that employees who violate the sections referred to above may be subject to "disciplinary measures, up to and including termination." DOC Code of Ethics and Conduct Section V(F). As we previously have stated, the Legislature has delegated the determination of the extent and severity of discipline to the DOC director and that determination is not subject to review by an arbitrator. See State Department of Corrections v. Rhode Island Brotherhood of Correctional Officers, 725 A.2d 296, 299 (R.I. 1999) (Riel) ("The Legislature could not have intended to make the paramount disciplinary function of the director subject to the caprice of an arbitrator."). Director Vose determined that "any one of the charges regarding theft * * * standing alone, warrant discharge." A violation of the DOC Code of Ethics and Conduct having been established, the appropriateness of the disciplinary measures to be invoked lies within the discretionary authority of the director. The arbitrator lacked the authority to alter or determine the discipline imposed. Thus, the arbitrator's decision to reverse the director's termination of Mr. Algasso was irrational and the arbitrator exceeded his powers by substituting his judgment for that of the director concerning the choice of discipline.
Cable Television Converter Box
At the arbitration hearing, Mr. Algasso admitted that in February 1993 he had a box connected to his television that allowed him to receive pay channels without paying for them.
He said that he also had two or three broken converter boxes that he was trying to learn how to fix.
As the arbitrator found, and both parties agree, the wrongful obtaining of telecommunication service is a misdemeanor offense. The arbitrator, however, was persuaded that the testimony of Director Wall was "dispositive on the question of how that 'misdemeano
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