Bennett v. State Civil Serv. Comm'N
| Decision Date | 19 May 2011 |
| Docket Number | No. 1769 C.D. 2010,1769 C.D. 2010 |
| Parties | Tina M. Bennett, Petitioner v. State Civil Service Commission (State Correctional Institution at Muncy and Department of Corrections), Respondents |
| Court | Pennsylvania Commonwealth Court |
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BYPetitioner, Tina M. Bennett, appeals from the order of the State Civil Service Commission (CSC) dismissing her challenge to her termination from employment as a Corrections Officer 3 (CO3)1 by the State Correctional Institutionat Muncy (SCI-Muncy). We affirm.
Petitioner was employed as a corrections officer at CSI-Muncy for 19 years. Petitioner had attained the rank of lieutenant and had been serving in that position for seven months. On March 7, 2009, Petitioner was working the 2:00 p.m. to 10:00 p.m. shift, the second shift, in the restricted housing unit (RHU) when she received a report that Inmate Tania Andrews was obstructing her cell window. Petitioner called Lieutenant Adrian Hummel (CO3) in the control center regarding Inmate Andrews. Lieutenant Hummel told Petitioner that the shift commander, acting-Captain Sara Moser (CO3), was not available. Petitioner testified that Lieutenant Hummel authorized her to enter Andrews' cell and also authorized use of the Electronic Body Immobilization Device (EBID). Further, Petitioner testified that Lieutenant Hummel told her "no paperwork." Petitioner assembled a team of corrections officers.2 Petitioner instructed Officer Ronald Nolte (CO1) to obtain the EBID. The team entered Andrews' cell after she refused to remove the obstruction from her window. Upon entry, Andrews retreated to the back of the cell. The team applied restraints and the EBID was used to force compliance. The team removed the contents of the cell except for the mattress, released the restraints and exited the cell. After exiting the cell, Petitioner told the team that they were not to fill out any paperwork. Andrews obstructed the window to her cell a second time. Petitioner decided to move Andrews to an observation cell. Petitioner reassembled the entry team. Andrews again tried to evade the corrections officers and restraints were applied. The team succeeded in moving Andrews to the observation cell. Petitioner again instructed the entry team that they were not required to fill out paperwork. Later during the shift, acting-CaptainMoser questioned Petitioner about the cell entries. Acting-Captain Moser asked whether Petitioner had completed any paperwork and whether Andrews had complied. Petitioner admitted that she had not completed any paperwork and stated that Andrews had complied. Petitioner and acting-Captain Moser then filled out paperwork (Form DC-709) documenting the two cell entries and the extraction.
On March 8, 2009, Andrews informed Officer Leesa Neece that she had been "tased" and moved from her cell the day before. Andrews showed Officer Neece "signature marks," which Neece concluded had been made by the EBID. Officer Neece searched for any documentation regarding the cell entries, the extraction, or the use of the EBID and contacted SCI-Muncy's control center and medical unit, but was unable to find any paperwork. Officer Neece filed a DC-121 incident report noting the injuries to Andrews. On that same day, Petitioner met with the officers who comprised the cell entry team to discuss their actions on the day before. The meeting was held in the control center and Petitioner asked employees who were not part of the team to leave the room.
On March 9, 2009, Captain Ronald Robenolt (CO4) initiated an investigation into the March 7th incident. Captain Robenolt conducted an interview with Andrews during which Andrews showed him her injuries and described the incident. Captain Robenolt directed a nurse to take pictures of the signature marks on Andrews' leg. Robenolt also conducted a search for paperwork and video of the cell entries, but failed to find either. On March 12, 2009, Robenolt commenced interviews and took written statements from Petitioner, the cell entry team, Lieutenant Hummel and acting-Captain Moser. On March 30, 2009, Petitioner submitted a second written statement, which for the first time stated that Lieutenant Hummel had given her permission to use the EBID.
Harold Kertes, a criminal investigator with the Department of Corrections, Office of Professional Responsibility (OPR), also conducted an investigation into the March 7th incident. Kertes interviewed the members of the cell entry team and Petitioner. Following Petitioner's interview, Kertes, Captain Robenolt, and acting-Captain Moser escorted Petitioner from SCI-Muncy. At this time, Kertes instructed Petitioner that she was not to contact any of the staff members involved with the investigation. Petitioner was notified by letter dated April 21, 2009, that she was suspended without pay pending investigation, that a pre-disciplinary conference would be scheduled and that she was prohibited from contacting any staff involved in the investigation. Petitioner subsequently contacted Officer Nolte via text message on two occasions.
On May 21, 2009, Petitioner was advised by memorandum that a pre-disciplinary conference had been scheduled for May 28, 2009, and that she was being accused of violating Sections B-22 and B-29 of the Department of Corrections Code of Ethics (Code of Ethics); Department of Corrections Policy and Procedure 6.3.1, Section 32 - Use of Force, General Provisions and Videotaping; Section 33 - Restraints; Section 35 - Cell Extractions; and DC-ADM 201 - Use of Force Policy. Section B-22 of the Code of Ethics provides:
An employe shall submit any necessary and/or requested work related reports in a timely manner and in accordance with existing regulations. Reports submitted by employes shall be truthful and no employe shall knowingly enter or cause to be entered any inaccurate, false, or improper information or data, or misrepresent the facts in any Department record or report.
Reproduced Record (R.R.) at 118a. Section B-29 of the Code of Ethics provides:
All employes shall comply and cooperate with internal investigations conducted under the authority of the Department of Corrections, and respond to questions completely and truthfully. Procedure in cases that may result in criminal prosecution will include those rights accorded to all citizens of the Commonwealth.
R.R. at 119a. Facility Security Manual 6.3.1 - Section 32 requires that the commissioned officer in charge arrange for videotaping of the planned used of force, arrange for examination and photographing of the inmate and staff by the medical staff, report the use of force to the shift commander, and fill out a DC-121 form detailing the use of force. Section 33 requires the commissioned officer to contact the medical department prior to use of the EBID, obtain authorization to use the EBID from the shift commander, and complete a full written report. Section 35 requires that the shift commander authorize a cell extraction and that the extraction be videotaped. DC-ADM 201 is an administrative policy statement, which establishes the Department's policy and procedure regarding the use of force. The pre-disciplinary conference was held and the panel consisted of SCI-Muncy's healthcare administrator, SCI-Muncy's director of human resources and Major Wayne Bechdel (CO5). By letter dated June 16, 2009, Petitioner was terminated for violating Sections B-22 and B-29 of the Code of Ethics, Sections 32, 33 and 35 of Policy and Procedure 6.3.1 and DC-ADM 201.
Petitioner filed a timely appeal with the CSC. Petitioner challenged her removal from employment under Section 951(a) of the Civil Service Act3 (the Act), 71 P.S. § 741.951(a), asserting that her dismissal was without just cause. Hearing Examiner, Therese L. Kenley, conducted hearings on October 23, 2009,December 4, 2009, and January 6, 2010. SCI-Muncy presented the testimony of corrections officers: Jesse Iliams, Ronald Nolte, Cheryl Flick, Ryan Bieber, Heather Gair, Richard Harvey, Adrian Hummel, Sara Moser, Robert Heisman, Leesa Neece, Blaine Stettler, Robert Nolte and Wayne Bechdel. Harold Kertes, OPR investigator, also testified for SCI-Muncy. Petitioner also testified.
In addition to Petitioner, Officers Iliams, Nolte, Flick, Gair and Harvey constituted the cell entry team. Officers Iliam, Nolte, Bieber,4 Gair and Harvey all testified that Petitioner informed them that they were not to fill out any paperwork. Officers Flick, Bieber and Gair testified that they had always completed paperwork following a planned use of force. Concerning the March 8th meeting, Officers Iliams, Flick and Nolte testified that the purpose of the meeting was to come up with a story if a fact-finding investigation was initiated. Officers Gair and Harvey testified that the team agreed to say that the EBID was not used and that Andrews complied. Officers Gair and Harvey also testified that the team later decided to tell the truth. Petitioner does not deny that she told the team "no paperwork." Petitioner testified that the completion of paperwork following a planned used of force varied from shift to shift at SCI-Muncy and that she had never completed paperwork while assigned to second shift. Petitioner also testified that the team meeting was merely to inform the team members that an investigation might be instituted and not for the purpose of orchestrating a cover-up. Lieutenant Hummel denied giving Petitioner permission to use the EBID, but acknowledged that Petitioner called him again after completing the second cell entry. Acting-Captain Moser testified that she never received a request to use the EBID or toconduct a planned use of force. Following the hearing, both parties submitted briefs in support of their respective positions. The CSC issued an adjudication...
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