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State2/25/2005
93 termination until March 2000. Between then and June of that year, a series of hearings were conducted before an arbitrator on the issue of whether there was just cause to terminate Algasso. In a written decision issued on October 1, 2001, the arbitrator found that the state did not have just cause to fire Anthony Algasso. With respect to the food and linens seized at Algasso's home, the arbitrator found insufficient evidence that either had been stolen from the prison. He noted that a supervisor of Algasso had testified that although most of the food item brands seized at Algasso's home could be found in the prison kitchen, there were no reports of any food items missing during the period in question, and that those items also could be purchased on the market. Uncontradicted testimony was presented to the arbitrator that Algasso ran a small catering business out of his home, which tended to support his assertion that he legitimately obtained the food for that purpose.
With regard to the linens, the arbitrator concluded that the linens were "throwaways," as testified to by prison officials, and that Algasso had been called upon to use the linens in his vehicle to deliver food to other prison facilities as part of his duties. Therefore, the arbitrator reasoned, Algasso should not be regarded as stealing that which was intended to be discarded. Moreover, even though there was significant testimony from management personnel at the Department of Corrections that linens were "bootlegged" from the Department of Mental Health, Retardation and Hospitals (MHRH) by removing loose boards, there was absolutely no evidence that Algasso had obtained any of the linens in that manner, but only that they were available in the DOC kitchen where he worked.
With respect to the allegations of drug use, the arbitrator gave great weight to the lack of evidence before him regarding the nature of the alleged drugs seized from Algasso's home. No evidence of laboratory or even field testing was presented to verify that the substances seized were in fact cocaine or marijuana. The arbitrator therefore considered the state to have fallen short of its burden of proving that drugs were seized in Algasso's home.
It is certainly worth mentioning that the state presented no live testimony whatsoever in the arbitration hearings. The arbitrator accepted police and investigatory documents into evidence with respect to the 1993 search and seizure of Algasso's residence, despite their hearsay nature. He also correctly found that the exclusionary rule did not apply to the arbitration process, and therefore allowed the results of the search and seizure to come into evidence before him. However, in his decision, he guardedly considered the findings of the trial justice in the 1997 suppression hearing and the criticisms that the justice lodged against the reckless conduct of the Johnston police. The arbitrator pointedly noted that the justice's findings were only one of many factors that he considered.
Finally, with respect to the illegal cable boxes in Algasso's residence, the arbitrator considered the testimony of the acting director of the department, Ashbel T. Wall, in which the director said that not all minor offenses committed off the job were grounds for termination; rather there had to be some nexus found between the offense and the job for termination to be warranted. The arbitrator therefore found that there was no just cause for firing Algasso based upon the 1993 charges. He did not consider Algasso's subsequent 1995 misconduct in his just cause determination, but did allow the state sixty days to pursue disciplinary action in that regard.
In a remedial decision issued on January 8, 200
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