State of North Carolina s22

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF NORTHAMPTON 03 OSP 0974

1

AYESHA NEAL-HARRY,

Petitioner,

v.

N. C. DEPARTMENT OF CORRECTION,

Respondent.

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DECISION

This matter was heard before Beecher R. Gray, Administrative Law Judge, on October 21, 2003, in the Town Hall Municipal Building, Second Floor Courtroom, 3672 North Main Street, Farmville, North Carolina. The parties stipulated on the record that notice of hearing was proper.

APPEARANCES

For the Petitioner: Ayesha Neal-Harry

3579 Bryantown Road

Jackson, North Carolina 27845

For the Respondent: Joseph Finarelli

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, NC 27602

EXHIBITS

Petitioner’s Exhibits:

Petitioner’s Exhibit 1 Policy and Procedures on Discipline and Investigation

Petitioner’s Exhibit 2 Performance Evaluations of Petitioner & Policy Guidelines

Respondent’s Exhibits:

Respondent’s Exhibit 1 Petitioner’s TAP report (November 2002)

Respondent’s Exhibit 2 Memo from James B. French re: Undue Familiarity (May 25, 2000)

Respondent’s Exhibit 3 DOC Personnel Manual - Personal Dealings With Offenders

(pp. 60-63)

Respondent’s Exhibit 4 DOC Policy and Procedures for Personal Dealings with Inmates

(Chapter A .0200, p. 3)

Respondent’s Exhibit 5 DOC Staff Training Log for “Undue Familiarity”- (May 20, 2002)

Respondent’s Exhibit 6 Memo from Sgt. E. Nelson to Capt. E. Benthall - (Nov. 12, 2002)

Respondent’s Exhibit 7 Memo from Sgt. E. Nelson to Lt. Cheek - (Nov. 13, 2002)

Respondent’s Exhibit 8 Internal Investigation Statement of Sgt. E. Nelson - (Dec. 6, 2002)

Respondent’s Exhibit 9 Internal Investigation Statement of Petitioner - (Dec. 4, 2002)

Respondent’s Exhibit 12 Photograph of rear of Dorm #6 at Tillery Correctional Center

Respondent’s Exhibit 13 Statement by Witness of C/O E. King - (Nov. 23, 2002)

Respondent’s Exhibit 15 Internal Investigation Statement of C/O E. King - (Dec. 11, 2002)

Respondent’s Exhibit 18 DOC Standard Operating Procedures - General and Special Orders Yard Security at Tillery Correctional Center (No. 8-2.1)

Respondent’s Exhibit 19 Internal Investigation Statement of Capt. E. Benthall

(Dec. 11, 2002)

Respondent’s Exhibit 20 Internal Investigation Memo from Supt. T. King to J. Lancaster

pp. 1-6 (Dec. 20, 2002)

Respondent’s Exhibit 21 Letter from Supt. T. King to Petitioner re Pre-Disciplinary Conference (Dec. 16, 2002)

Respondent’s Exhibit 22 Pre-Disciplinary Conference Acknowledgment Form

(Dec. 20, 2002)

Respondent’s Exhibit 23 Letter of Dismissal from Supt. T. King to Petitioner, pp. 1-4

(Feb. 4, 2003)

Respondent’s Exhibit 25 Letter from L. Denning to Petitioner re: upholding dismissal - (Apr. 29, 2003)

FINDINGS OF FACT

1. At the time of her dismissal, the Petitioner, Ayesha-Neal Harry (“Petitioner”), had been employed by the North Carolina Department of Correction (“Respondent”) as a Correctional Officer at Tillery Correctional Center (“Tillery”), in Tillery, North Carolina.

2. Eugene Benthall was a Captain for Respondent and had served in that capacity at Tillery for four (4) years. Testimony of Eugene Benthall, T. p. 56.

3. During every roll call, the staff at Tillery was read a memorandum which outlined the policy regarding personal dealings with inmates. The memo explained that staff were prohibited from engaging in undue familiarity with inmates and from discussing his or her personal affairs with an inmate. Petitioner signed a copy of the memorandum indicating that she had received it and had read its contents. Testimony of Eugene Benthall, T. pp. 57-58; Respondent’s Ex. 2.

4. Respondent’s Personnel Manual provisions regarding personal dealings with offenders were also discussed with staff members at Tillery. The policy states that:

“[w]henever there is a reason to discuss an offender’s problems with him/her, the employee shall exhibit a helpful but professional attitude consistent with his/her job responsibilities. No employee shall discuss his/her personal affairs, including work related issues, with an offender of this agency.”

Testimony of Eugene Benthall, T. p. 60; Respondent’s Ex. 3.

5. Although the Personnel Manual provisions addressing personal dealings with offenders provide a list of certain prohibited activities, the Personnel Manual further states that: “[t]his list is not an all inclusive list. Any time an employee is in doubt about an issue regarding dealings with a offender(s), the employee has an obligation to ask questions of his/her supervisor or other appropriate manager or clarification.” Testimony of Eugene Benthall, T. pp. 60-61; Respondent’s Ex. 3.

6. As an example, although the Personnel Manual does not expressly list “sitting on the yard holding hands with” an inmate as a prohibited activity, that conduct would constitute undue familiarity. Testimony of Eugene Benthall, T. p. 60; Respondent’s Ex. 3.

7. Tillery’s Superintendent, Tommy King, testified that Respondent’s Policy and Procedures Manual also addresses personal dealings with inmates. Specifically, the Policy and Procedures Manual states that:

Employees will maintain a quiet but firm demeanor in their dealings with inmates and will not indulge in undue familiarity with them. Whenever there is reason for discussing an inmate’s problems with him, employees will exhibit a helpful but professional attitude. No employee will discuss his or her personal affairs with an inmate.

Testimony of Supt. Tommy King, T. p. 79; Respondent’s Ex. 4.

8. Edward Nelson was a sergeant with the North Carolina Department of Correction (“Respondent”) for approximately three (3) years, and was Petitioner’s immediate supervisor at Tillery Correctional Center (“Tillery”) in 2002. Testimony of Edward Nelson, Transcript pages [T. pp.] 13-14.

9. On May 20, 2002, Sgt. Nelson, along with Petitioner and other Tillery personnel, attended a training session where Respondent’s policy regarding undue familiarity with inmates was discussed. In addition to a discussion about Respondent’s policy, the attendees were shown a videotape depicting various scenarios where staff interact with inmates. Testimony of Edward Nelson, T. pp. 15-17; Respondent’s Ex. 5.

10. The training session specifically discussed that staff should have only professional involvement with inmates and that lengthy conversations with inmates can lead to other, prohibited activities between staff and inmates. Testimony of Edward Nelson, T. pp. 14, 16.

11. Towards the end of October 2002, Sgt. Nelson began to observe Petitioner having conversations with particular inmates at Tillery with increasing frequency and for periods of time of four minutes or longer. Over time, these conversations became a daily occurrence. Testimony of Edward Nelson, T. pp. 14-15, 21.

12. After observing Petitioner’s conduct, Sgt. Nelson informed Petitioner of his concerns about this conduct during Petitioner’s interim performance review on November 11, 2002. Specifically, Sgt. Nelson advised Petitioner that he had seen Petitioner speaking with certain inmates for a lengthy period of time while she was working, and that Petitioner needed to correct this problem. Petitioner responded, “OK.” Testimony of Edward Nelson, T. pp. 14-15, 18-19; Respondent’s Ex. 1.

13. After giving Petitioner her interim performance review, on November 12, 2002, Sgt. Nelson prepared a memorandum to his superior officers, Captain Eugene Benthall, Lt. Clinton Cheek and Lt. Rawls. The memorandum advised Sgt. Nelson’s superiors of his observations of Petitioner’s conduct, his statement that Petitioner needed to change her behavior and Petitioner’s response of “OK.” The memorandum also identified the inmates with whom Petitioner was seen speaking as Lorenzo Dancy, Kelvin Hill, Joseph Seaborn and Linco Testimony of Edward Nelson, T. pp. 18-20; Respondent’s Ex. 6.

14. Sgt. Nelson’s warning to Petitioner about her talking too long with inmates could not have applied to any of Respondent’s policies other than undue familiarity. Testimony of Edward Nelson, T. p. 20.

15. On November 13, 2002, Sgt. Nelson again observed Petitioner standing in front of inmate Kelvin Hill and next to inmate Lorenzo Dancy who was lying on his bunk. When Petitioner saw Sgt. Nelson enter the room, she walked away. Sgt. Nelson also had seen Petitioner and these inmates occasionally walking around the yard at Tillery together. Testimony of Edward Nelson, T. pp. 21, 30.

16. On November 13, 2002, Sgt. Nelson prepared a memorandum to Lt. Cheek and Lt. Rawls advising them of his observations, reiterating that he had advised Petitioner against speaking with inmates for lengthy periods of time, and informing them that Petitioner was talking to “the same inmates everyday she works on the unit.” Testimony of Edward Nelson, T. p. 21; Respondent’s Ex. 7.

17. According to her own written statement, on October 26, 2002, Petitioner had been seen by Lt. Rawls sitting on a picnic table behind Tillery’s Dorm #7 with at least one inmate seated next to her, a second inmate standing against the picnic table and several other inmates standing around the picnic table. Petitioner did not get off the table as Lt. Rawls approached because “that would have made it look like [she] was doing something wrong.” Respondent’s Ex. 9; Testimony of Supt. Tommy King, T. pp. 83-84.

18. Lt. Rawls told Petitioner that her being on the picnic table surrounded by inmates did not look presentable. Respondent’s Ex. 9; Testimony of Supt. Tommy King, T. pp. 83-84.

19. Clinton Cheek was a lieutenant with Respondent for approximately six (6) years. Petitioner was one of the correctional officers under his command and he and Petitioner worked the same shift. Testimony of Clinton Cheek, T. pp. 35-36.

20. After having been advised by Sgt. Nelson that Petitioner was “having several inmates in her presence on a regular basis,” Lt. Cheek spoke to Petitioner about her dealings with inmates. Specifically, Lt. Cheek advised Petitioner on at least two (2) occasions that her dealings with inmates constituted undue familiarity. Testimony of Clinton Cheek, T. pp. 36-37.

21. When so advised by Lt. Cheek, Petitioner did not deny that the conversations observed by Sgt. Nelson had taken place and indicated that she would correct the problem. Petitioner also did not tell Lt. Cheek that her conversations with inmates were job-related. In fact, Petitioner advised Lt. Cheek that the inmates often wanted to talk with her about their own personal or family issues. Testimony of Clinton Cheek, T. pp. 37-38.

22. Although correctional officers have a responsibility to refer inmates and their concerns to the personnel who can address those concerns, Petitioner never referred any of the inmates’ issues to Lt. Cheek. During Lt. Cheek’s conversations with Petitioner about her dealings with inmates, Petitioner never told him that she had referred any of the inmates’ problems to anybody else. Testimony of Clinton Cheek, T. pp. 38-39.

23. Eddie King was a correctional officer (“C/O”) with Respondent at Tillery for approximately twelve (12) years. Testimony of Eddie King, T. p. 40.

24. Supt. Tommy King asked C/O King to observe Petitioner as she carried out her daily job responsibilities as the #2 Yard officer. Testimony of Supt. Tommy King, T. p. 80; Testimony of Eddie King, T. pp. 40.

25. Supt. Tommy King selected C/O King to conduct the surveillance of Petitioner because C/O King was assigned to work the same weekend as Petitioner and C/O King had experience, as the dog handler, being out in the woods and fields surrounding Tillery. Testimony of Supt. Tommy King, T. p. 81.

26. On November 23, 2002, C/O King observed Petitioner while she worked on Tillery’s #2 Yard. Testimony of Eddie King, T. p. 40; Respondent’s Ex. 13, 15.

27. At approximately 2:30 p.m. on November 23, 2002, while using a pair of binoculars and observing Petitioner from a distance of 500-600 yards, C/O King saw Petitioner, accompanied by inmate Kelvin Hill, making rounds on the #2 Yard. Testimony of Eddie King, T. p. 41-42; Respondent’s Ex. 14.

28. At around 6:00 p.m. on November 23, 2002, C/O King resumed his surveillance of Petitioner while she was assigned to the #2 Yard. At this time, C/O King saw Inmates Kelvin Hill and Lorenzo Dancy walk towards the rear of Tillery’s Dorm #6 from one side as Petitioner approached the rear of Dorm #6 from the opposite direction. Petitioner, Inmate Hill and Inmate Dancy then met behind Dorm #6.

29. The area behind Dorm #6 at Tillery is secluded. Testimony of Supt. King, T. p. 81.

30. C/O King was familiar with inmates Hill and Dancy as a result of having been instructed, on November 21, 2002, to search their living quarters in pursuit of suspected contraband. Testimony of Eddie King, T. pp. 42-43, 53.

31. Inmate Dancy left the area, making his way back towards Dorm #7, leaving inmate Hill and Petitioner behind Dorm #6. Specifically, Petitioner backed up against a fence which surrounded the air-conditioning units at the rear of Dorm #6. Inmate Kelvin Hill walked towards Petitioner and leaned his head to one side in such a fashion that C/O King believed that inmate Hill had kissed or attempted to kiss Petitioner. Testimony of Eddie King, T. pp. 44-45; Respondent’s Ex. 12.

32. Then, Petitioner appeared to gently brush inmate Hill away. Inmate Hill then walked in the direction of Dorm #5 and looked up the walkway there. To C/O King, it appeared that inmate Hill was checking to see if anyone else was approaching. Inmate Hill then returned to where Petitioner was standing. For approximately the next four (4) minutes, Petitioner and inmate Hill walked side by side back and forth behind Dorm #6. While walking, Petitioner and inmate Hill brushed up against each other. Testimony of Eddie King, T. pp. 45-46.

33. When the count was called at approximately 6:30 p.m., inmate Hill and Petitioner broke contact. C/O King then prepared a written statement detailing what he had seen during the afternoon and early evening of November 23, 2002. C/O King presented this statement to Supt. Tommy King the following day. Testimony of Eddie King, T. pp. 46-47; Respondent’s Ex. 13; Testimony of Supt. Tommy King, T. p. 40.

34. At approximately 5:15 p.m. on November 29, 2002, as he approached Tillery to report for duty that evening, Capt. Benthall saw Petitioner in the front of the #2 Yard. Petitioner was standing with her back to the wall near the front door of Dorm #8. Four or five inmates were standing in a semicircle in front of Petitioner. Testimony of Eugene Benthall, T. pp. 62-63.

35. Supt. Tommy King asked C/O King and Capt. Benthall to observe Petitioner on November 29, 2002, when Petitioner was again assigned to patrol the #2 Yard. Testimony of Eddie King, T. p. 47; Testimony of Eugene Benthall, T. p. 61; Testimony of Supt. Tommy King, T. pp. 85-86.

36. Supt. King instructed C/O King and Capt. Benthall to position themselves so that they could observe the rear of Dorm #6. C/O King and Capt. Benthall observed the area behind Dorm #6 from approximately 6:10 p.m. until 8:30 p.m. Testimony of Eddie King, T. p. 48; Testimony of Eugene Benthall, T. pp. 64-65.

37. The # 2 Yard officer was required to complete a check of the #2 Yard once an hour. This requirement was frequently mentioned during roll call, including by Capt. Benthall. Testimony of Eddie King, T. pp. 48-49; Testimony of Eugene Benthall, T. p. 65.