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State2/25/2005
r' should have been handled. He was asked if '* * * a criminal offense * * * a conviction, is * * * automatic grounds for dismissal * * *.'
Director Wall responded, 'We look at the conduct that underlies the criminal charge.' Director Wall went on to testify that 'every case has to be looked at on its own terms within the parameters of our departmental policies and the Code of Ethics and Conduct.' He further testified that '* * * there are correctional officers who have been convicted of misdemeanor offenses that remain on the job because those offenses have been -- have been off duty misconduct which there wasn't a direct nexus to their employment in some of those instances.' I am satisfied Mr. Algasso's illegal arrangement to secure cable channels to which he was not entitled was a 'misdemeanor' which occurred 'off duty' and which did not constitute '* * * a direct nexus to employment * * *.' As such, under the Department practice as testified to by Director Wall, that illegal cable use does not represent just cause for termination."
We are of the opinion, however, that the arbitrator has substituted his judgment about what the appropriate disciplinary action should be for that of the DOC director. The arbitrator's conclusion, therefore, is inconsistent with § 42-56-10, which outlines the powers of the director "in light of the director's non-delegable authority to maintain security, safety, and order at all state correctional facilities. Section 42-56-10(2)." Riel, 725 A.2d at 298.
The Riel case involved a correctional officer who had been convicted of an off-duty misdemeanor. Here, Mr. Algasso was not convicted, indeed the criminal charges were dismissed. Nevertheless, the charge was "factually substantiated" after an administrative hearing, and Mr. Algasso admitted to obtaining cable service without paying for it at the arbitration hearing. The misconduct clearly occurred off duty, but as we said in Riel, " e believe that the Legislature did not intend the director under a CBA to abdicate the disciplinary function to an arbitrator in light of the awesome responsibility that is imposed upon the director." Id.
The efficacy of this principle is apparent from the testimony of Director Wall:
"If an inmate is aware or discovers that a staff member is engaged in misconduct, that inmate then has something on the staff member, that inmate has leverage over the staff member. It can be used for extortion and blackmail and to undermine confidence in the performance of staff; and those translate into security breaches."
On cross-examination, Director Wall did acknowledge that every case must be reviewed on its own terms, and the conduct underlying a criminal charge examined. But he also said that "certainly there are situations for whatever reason somebody may not be charged criminally but * * * it still is an episode or an incident that has compromised our security, and we will make decisions on that basis."
He further testified, " ur practice has been that if a misdemeanor conviction is related to the performance of [one's] duties on the job, the underlying conduct justifies termination, that if it is not directly related to performance on the job it may not lead to termination."
The determination of whether a sufficient relationship exists between the employee misconduct and performance on the job, however, has been statutorily delegated to the director under the provisions of § 42-56-10(7), which empowers the director to " ire, promote, transfer, assign, and retain employees and suspend, demote, discharge, or take other necessary disciplinary action."
We also are not persuaded that by failing to refe
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