Two OPEA members are celebrating victories at the Oklahoma Merit Protection Commission as the Administrative Law Judges rule in their favor. Both member’s cases involved five day suspensions without pay.
Lieutenant Cory Day’s case against the Department of Corrections came before ALJ Lydia Lee in November 2009. Day was represented by OPEA’s law firm while the agency was represented by Larry Foster and Warden Mike Addison
Judge Lee found in her Conclusions of Law that the agency:
Failed to present sufficient evidence to support its decision that Day engaged in misconduct and that the agency failed to meet its burden of proof, by a preponderance of the evidence that just cause existed to discipline Day.
DOC failed to meet its burden of proof that it followed the Progressive Disciplinary Procedure.
And that there was no just cause to discipline Day.
Judge Lee ordered that the DOC rescind the discipline imposed, restore all back pay and benefits and to expunge the employees personnel record of all references to the disciplinary action.
OPEA found additional concern with some Findings of Fact by the ALJ.
Specifically in the Findings of Fact, Administrative Law Judge Lydia Lee found that:
An Internal Affairs Investigation of the incident was conducted by Investigator Shawn Dobson. Dobson’s initial report concluded that the use of force was spontaneous, in close quarters and was not excessive. This report was rejected and he was ordered to revise the report with a different conclusion, stating that “according to DOC General Counsel Mike Oakley, Lt. Day did not use the minimum amount of force necessary when he struck Offender Norris.” (Pg. 3, Second Paragraph)
Also of concern was the Finding of Fact on pg. 7, final paragraph of the order which states:
Of particular concern is the interference of the Department with the impartiality and fairness of the Internal Affairs Investigation. The Investigator was forced to change his report to support a conclusion made by others, without regard to the facts.
“Based on the Finding of Fact by the ALJ Lydia Lee, it would appear that violations of policy (OP 110212, Rules Concerning the Individual Conduct of Employees) and or law may have taken place during the investigation and/or during the testimony regarding this case,” said OPEA Employee Relations Coordinator Clyde McClendon. “The Association has expressed concerns in the recent past about the impartiality and fairness of Internal Affairs Investigations. This would appear to be another occasion which warrants scrutiny.
The Association has asked Director Justin Jones to look into the findings.
In the other DOC case, Administrative Programs Officer Sherry Bull was exonerated by ALJ P.K. Floyd after a hearing conducted in October 2009.
Judge Floyd found in her Conclusions of Law:
DOC failed to meet its burden of proof by a preponderance of the evident that just cause exists for the adverse action and discipline imposed.
DOC failed to meet its burden of proof that just cause exists to discipline the employee for violations of rule and policy.
Judge Floyd ordered the agency to rescind the discipline, restore all pay and benefits and expunge the employee’s record.
Of particular concern to OPEA in the ALJ’s Findings of Facts were conclusions about consistency of discipline in the Northwest District. According to Judge Floyd,
“Regarding discipline received by DOC employees in the past, evidence was presented by Appellant that employees working in the Northwest District had received a written reprimand for visiting a pornographic sit and a five-day suspension without pay for public intoxication. Even though these actions were serious, neither of these employees was threatened with termination and no internal investigation was conducted.”
“Agencies must strive to ensure consistency, evenhandedness and predictability when they discipline an employee,” said McClendon. “Apparently the judge in this case had concerns with this in the Northwest District.”
On January 4th, 2010, Judge Floyd entered an addendum decision to her Final Order. In the addendum, Judge Floyd granted the employees motion for the awarding of attorney fees and costs in the amount of $14,843.75 and $717.66.
“I have worked for the State of Oklahoma for 18 years and never thought that I would ever have to deal with the Merit Protection Commission (MPC). Unfortunately I had been accused of false allegations by a supervisor which resulted in an attempt to discipline me,” said Bull. “Thanks to OPEA and their belief in me I was able to receive legal representation and support throughout the MPC hearing process. I was vindicated from all accusations and my excellent work performance and history was cleared. The MPC process is a long and stressful ordeal but with the support of OPEA and the legal counsel that they recommended, I have mine and my family’s integrity restored.”