TENNESSEE BOARD OF PROBATION AND PAROLE, Petitioner, vs. DEBORAH KING, Grievant

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1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law TENNESSEE BOARD OF PROBATION AND PAROLE, Petitioner, vs. DEBORAH KING, Grievant Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE CIVIL SERVICE COMMISSION OF THE STATE OF TENNESSEE IN THE MATTER OF: ) ) TENNESSEE BOARD OF ) PROBATION AND PAROLE, ) ) Petitioner, ) ) v. ) DOCKET NO J ) DEBORAH KING, ) ) Grievant. ) INITIAL ORDER This contested case came on to be heard on May 20, 2008 in Nashville, Tennessee, before Administrative Judge Joyce Grimes Safley, assigned by the Secretary of State, Administrative Procedures Division, and sitting for the Civil Service Commission. Mr. Samuel Knapper, attorney for the Tennessee Board of Probation and Parole, represented Petitioner Board of Probation and Parole. The Grievant, Deborah King, was present and was represented by Mr. C. Jay Ingrum, of the Sumner County, Tennessee Bar. The subject of this hearing was Grievant s appeal of a one day suspension without pay. Grievant was given this one day suspension for allegedly violating Rule (2) of the Rules of the Tennessee Department of Personnel by committing conduct which may affect an employee s ability to successfully fulfill the requirements of the job, and for allegedly violating the following sections of Rule of the Rules of the Tennessee Department of Personnel : (4) Failure to maintain satisfactory and harmonious working relationships with the public and fellow employees; (8)

3 Conduct unbecoming an employee in the State service; (12) Participation in any action that would in any way seriously disrupt or disturb the normal operation of the agency, institution, department or any other segment of the State service or that would interfere with the ability of management to manage, and committing unprofessional conduct in violation of the mission and the code of ethics of the Board of Probation and Parole, Code of Ethics Policy , Section VI, Standards of Conduct. It is alleged that Grievant s act of sending an communication to the Director of the Tennessee Bureau of Investigation (TBI) violated the above Department of Personnel Rules and the BPP Code of Ethics Policy, and subjected Grievant to discipline. After consideration of the testimony and evidence presented, the arguments of counsel, and the entire record in this matter, it is determined that the Petitioner Board of Probation and Parole failed to meet its burden of proof, by a preponderance of the evidence, that Grievant violated Rule (2) of the Rules of the Tennessee Department of Personnel by committing conduct which may affect an employee s ability to successfully fulfill the requirements of the job, or these portions of Rule of the Rules of the Tennessee Department of Personnel : (4) Failure to maintain satisfactory and harmonious working relationships with the public and fellow employees; (8) Conduct unbecoming an employee in the State service; (12) Participation in any action that would in any way seriously disrupt or disturb the normal operation of the agency, institution, department or any other segment of the State service or that would interfere with the ability of management to manage, or a violation of BPP Ethics Code of Conduct. 2

4 At best, the Board of Probation and Parole can show that management was annoyed that Grievant contacted the TBI director. Further, it was clear that BPP directors/management who made the decision to discipline Grievant were not given correct information from Manager Keeton upon which to base their decision. Grievant s conduct does not rise to the level of violating the above referenced Rules or TBPP s Code of Ethics. Accordingly, it is therefore ORDERED that Grievant s one day suspension be SET ASIDE OR VACATED, and Grievant shall be paid for the day which she was suspended without pay. FINDINGS OF FACT 1. Grievant, Deborah King, is employed by the Tennessee Board of Probation and Parole. 2. Grievant has been employed by the State of Tennessee for twentyfour years. She has been employed with the Tennessee Board of Probation and Parole (BPP) for fifteen (15) years. 3. Grievant King currently holds the position of Probation and Parole Officer III (PPO3), and works in the Gallatin, Tennessee office of the Board of Probation and Parole. 4. Other than the present matter, Grievant has had no other disciplinary actions taken against her by the BPP. During her employment she has received promotions to her current position. 5. As a PPO3, Grievant King supervises offenders on intensive probation. 3

5 6. On August 17, 2007, Grievant King sent an to Tennessee Bureau of Investigation Director Mark Gwyn. Grievant King was disciplined for sending Director Gwyn the e mail. 7. The situation which prompted Grievant King to send TBI Director Mark Gwyn the at issue arose from Grievant King s supervision of probationer/inmate Shannon Taylor. 8. On May 23, 2007, Grievant King received a voic from Jane Birdwell. Ms. Birdwell stated: This is Jane Birdwell with the TBI. Please call me at [telephone number]. 9. When Grievant received Ms. Birdwell s voic , she was under the impression that Ms. Birdwell was a TBI agent Upon returning Ms. Birdwell s telephone call, Grievant learned that Ms. Birdwell was calling her regarding Ms. Birdwell s daughter, Shannon Taylor. Grievant was assigned as Probation Officer to Shannon Taylor, who was on probation for convictions of illegal drug sales. At the time of the telephone call, Shannon Taylor was incarcerated. 11. Ms. Birdwell asked Grievant King to call officials at the jail to make sure that her daughter, Shannon Taylor, was receiving her medications. Grievant instructed Ms. Birdwell to call the jail administrator regarding Ms. Taylor s medications. 12. Grievant testified that Ms. Birdwell seemed satisfied with the telephone call, and later Ms. Birdwell sent Grievant a list of her daughter s medications. 1 Grievant s testimony regarding this voic was entirely credible. 4

6 13. Grievant testified, credibly, that she mentioned Ms. Birdwell s call and reference to being with the TBI to TBPP Manager Rick Oakley. 14. Two TBPP managers were assigned to the Gallatin office of the Board of Probation and Parole. One of the managers was Rick Oakley. The other manager was Mike Keeton. 15. On August 10, 2008 both TBPP Manager Mike Keeton and Grievant were working in the Gallatin office when TBPP Manager Keeton told Grievant that Jane Birdwell had complained about Grievant. TBPP Manager Keeton told Grievant that Ms. Birdwell didn t like her, however, he did not tell Grievant that Ms. Birdwell had asked for a complaint form Ms. Birdwell s daughter, Shannon Taylor, was transferred to another BPP caseworker on August 13, Grievant testified that she waited until Shannon Taylor was no longer on her caseload before following up on her telephone conversation with Jane Birdwell, Shannon Taylor s mother. 18. Grievant was still disturbed over her communication with Ms. Birdwell, and believed that Ms. Birdwell had tried to use her employment with the TBI to influence her daughter s BPP caseworker (Grievant). 19. When discussing the matter with Manager Keeton, Manager Keeton told Grievant that he knew that TBI director Mark Gwyn would want to know about Birdwell s telephone call to Grievant. 2 Grievant found out that Ms. Birdwell had filed a formal complaint with TBPP on November 13,

7 20. Grievant testified, credibly, that Manager Keeton suggested Grievant send an to the TBI to let the TBI know about the Jane Birdwell incident. 21. Grievant sent an to Manager Keeton on August 13, 2007 with the subject: (Read this and tell me if I m out of line, please.) A concern regarding one of your employees. The body of the explained who the sender (Grievant) was and outlined Grievant s communication with Ms. Birdwell. 22. Grievant testified that, at the time she wrote and sent the draft to Manager Keeton, she did not know who to send the to. 23. When Grievant asked Manager Keeton who to send the to, he replied: Well, Mark Gwyn is the head of it [TBI]. 24. Grievant waited until August 17, 2007 to send the revised/corrected to TBI Director Gwyn because Shannon Taylor, Ms. Birdwell s daughter, had been assigned to another probation officer. 25. TBI Director Gwyn telephoned Grievant in response to receiving the . The tone of the conversation was pleasant, and Director Gwyn informed Grievant that he was going to assign the Birdwell matter to Brooks Wilkins for investigation. 26. Mr. Wilkins telephoned Grievant regarding the matter. Grievant testified that the conversation very pleasant. 27. On September 4, 2007, Manager Keeton informed Grievant that she was going to be suspended as a result of the she had sent TBI Director Gwyn. 6

8 28. TBI Director Gwyn testified that he was concerned when he received the from Grievant. He noted that the tone of the conversation between him and Grievant was professional and pleasant. He also testified that he did not consider the unprofessional. 29. Executive Director Robert Irwin, Tennessee Board of Probation and Parole, became involved in this matter when TBI Director Gwyn forwarded Grievant s to him. Executive Director Irwin acknowledged that TBI Director Gwyn was not upset or irate when Director Gwyn telephoned him about the and the underlying incident with Ms. Birdwell. 30. When Executive Director Irwin was considering Grievant s action and whether discipline of Grievant was warranted, he requested a written report from the two supervisors of the Gallatin BPP office. Both Manager Mike Keeton and Manager Rick Oakley stated that they had no prior knowledge of Grievant sending the to TBI Director Gwyn Executive Director Irwin testified that he had never seen the first or draft which Grievant sent to Manager Keeton. 32. Executive Director Irwin also testified that if he had known about Grievant s draft to BPP Manager Keeton, he would have considered it when deciding what course of action to take with Grievant. 33. BPP Director of Field Services Gary Tullock stated that Grievant s to TBI Director Gwyn bothered him because he did not think it was 3 While Manager Keeton provided a written statement to Director Irwin which stated that Keeton had no prior knowledge of Grievant sending the to TBI Director Gwyn, Keeton s written statement was later contradicted by Keeton s acknowledgment that he had received the draft from Grievant. 7

9 appropriate for a probation and parole officer to send an to the director of another agency. Director Tullock noted that there is a proper chain of communication or command. 34. Executive Director Irwin and Director Tullock were part of the decision making process regarding whether to discipline Grievant for sending the to the TBI Director. 35. Director Tullock testified that if he had known what BPP Manager Keeton had said to Grievant regarding the , it might have made a difference in the discipline imposed. 36. Grievant King received a letter, dated August 30, 2007, from Chairman BPP Charles Traugher which stated: This letter is to advise you that it is my intent to suspend your employment with the Board of Probation and Parole for a period of one (1) day. *** The tone of your communication to the TBI Director was unprofessional, inappropriate and condescending. You also represented yourself as speaking for the Board of Probation and Parole. Further, your ill-advised communication resulted in management issuing an apology to the TBI Director. Your behavior in this regard was embarrassing to this agency and is inexcusable. 37. BPP Manager Mike Keeton testified at the hearing of this matter. Manager Keeton admitted that Grievant approached him on more than one occasion to discuss the Birdwell TBI incident. Manager Keeton stated that he never authorized Grievant to send the to the TBI Director. Nor did he forward the to Manager Rick Oakley, or tell Manager Oakley about Grievant s proposed to TBI Director Gwyn. 8

10 38. BPP Manager Keeton acknowledged that he had received the draft regarding the Birdwell incident from Grievant on August 13, BPP Manager Keeton admitted that a person reading Grievant s initial draft can infer that the is going to someone at the Tennessee Bureau of Investigation. He also acknowledged that he had concurred or agreed with the Grievant that the Birdwell incident might be a concern to the TBI. 40. Manager Keeton also noted that someone reading Grievant s draft can draw the conclusion that the is going to someone to the TBI. 41. Ms. Rhonda Martin, a judicial assistant for Judge Dee Gay testified on behalf of Grievant King. Ms. Martin testified that she has worked in a position with Criminal Court since During that time, Grievant had frequent contact with Ms. Martin due to Grievant s work as a probation officer. Ms. Martin testified that Grievant was straightforward, by-the-book, honest and never acted unprofessional. 42. Judge Dee Gay, Criminal Court Judge for Sumner County, Tennessee also testified on behalf of Grievant. Judge Gay testified that he frequently interacted with Grievant in his courtroom, due to Grievant s job as a probation officer. Judge Gay testified that Ms. King was very professional, a model probation officer, intelligent, sticks up for the truth, and has impeccable integrity. Judge Gay also opined that Sumner County has one of the best probation offices in the state. 43. Phyllis Duckworth, Probation and Parole Officer II, also testified on behalf of Grievant. Ms. Duckworth corroborated Grievant s testimony by 9

11 relating that she was present during a conversation between Grievant and BPP Manager Keeton when they discussed the telephone call from Ms. Birdwell. Ms. Duckworth also confirmed that Grievant asked Manager Keeton if she should let someone at the TBI know about the Birdwell TBI incident. Ms. Duckworth was present when Manager Keeton replied that It wouldn t hurt. They d probably want to know. 44. Ms. Darlene Rush, the secretary in the Gallatin office of the Board of Probation and Parole testified that she saw a copy of Grievant s to the TBI and proof read it before Grievant sent it to TBI Director Gwyn. She also read the draft which Grievant sent to Manager Keeton. 45. Ms. Rush stated that if Rick Oakley was out of the Gallatin office, Manager Keeton supervises employees in the Gallatin office. If both Mr. Oakley and Mr. Keeton are out of the office, sometimes Grievant supervises the office. Ms. Rush also testified that Mr. Oakley was out of the Gallatin office quite a bit because he was also responsible for supervising the Lebanon, Tennessee office. 4 CONCLUSIONS OF LAW 1. Petitioner Board of Probation and Parole bears the burden of proof in this matter to show that Grievant violated the Department s written rules, policies (including Ethics Policies), or procedures, and that the discipline 4 At the hearing, TBPP took the position that Manager Keeton did not supervise Grievant, such that his approval or review of Grievant s draft to the TBI could not authorize Grievant s sending the to TBI Director Mark Gwyn. This position was not supported by the evidence presented, or the testimony of Ms. Rush or Grievant. Interestingly, Manager Rick Oakley did not testify at the hearing. 10

12 imposed, a one day suspension without pay, was the appropriate discipline for Grievant s violation of such rules. 2. Rule of the Rules of the Tennessee Department of Personnel provides as follows: A career [civil service] employee may be warned, suspended, demoted or dismissed by his appointing authority whenever legal or just cause exists. The degree and kind of action is at the discretion of the appointing authority, but must be in compliance with the intent of the provisions of this rule and the Act. An executive employee serves at the pleasure of the appointing authority. (Emphasis added). 3. Rule of the Rules of the Tennessee Department of Personnel states that causes for disciplinary action fall into two categories: (1) Causes relating to the performance of duties. (2) Causes relating to conduct which may affect an employee s ability to successfully fulfill the requirements of the job. 4. Rule of the Rules of the Tennessee Department of Personnel lists, in pertinent part, examples of disciplinary offenses which should be considered for disciplinary action: *** (4) Failure to maintain satisfactory and harmonious working relationships with the public and fellow employees; *** (8) Gross misconduct or conduct unbecoming an employee in the State service. *** 12) Participation in any action which would in any way seriously disrupt or disturb the normal operation of the agency, or interfere with the ability of management to manage. 11

13 5. As defined by the Uniform Rules of Procedure for Hearing Contested Cases before State Administrative Agencies, Rule (7), preponderance of the evidence means the greater weight of evidence, or that, according to the evidence, the conclusion sought by the party with the burden of proof is the more probable conclusion. 6. Turning to the charges against Grievant, it is determined that the Department has failed to prove, by a preponderance of the evidence, that Grievant violated: Rule (2) of the Rules of the Tennessee Department of Personnel by committing conduct which may affect an employee s ability to successfully fulfill the requirements of the job, the following sections of Rule of the Rules of the Tennessee Department of Personnel : (4) Failure to maintain satisfactory and harmonious working relationships with the public and fellow employees; (8) Conduct unbecoming an employee in the State service; (12) Participation in any action that would in any way seriously disrupt or disturb the normal operation of the agency, institution, department or any other segment of the State service or that would interfere with the ability of management to manage, and committing unprofessional conduct in violation of the mission, or the code of ethics of the Board of Probation and Parole, Code of Ethics Policy , Section VI, Standards of Conduct. 7. A review of Tennessee statutes, regulations, and case law does not reveal a definition of conduct unbecoming an employee in the State service. However, cases which have found violations of Rule (8) have typically dealt with employees who committed crimes, were guilty of assault, 12

14 abuse, or sexual harassment, or who committed gross misconduct. There is no allegation that Grievant committed a crime, was guilty of assault, abuse, or sexual harassment, or that she committed gross misconduct. 8. The BOPP has also charged that Grievant violated Rule (4) of the Rules of the Tennessee Department of Personnel: Failure to maintain satisfactory and harmonious working relationships with the public and fellow employees. 9. In considering whether or not Grievant has violated Rule (4), it is necessary to look at all the circumstances of this matter. 10. The weight of the evidence does not preponderate that Grievant violated Rule (4), Rules of the Tennessee Department of Personnel. No evidence or testimony supported that Grievant was rude or disrespectful during the course and scope of her employment 5. There was no evidence of rude behavior; disrespect for her supervisors, other employees, or the public; disharmony at work; or any other behavior on Grievant s part which could have violated this Rule. 11. Nor did the evidence presented at the hearing of this matter preponderate in favor of Grievant s action (sending an to the Director of the TBI) seriously disrupting or disturbing normal operations of the agency. 12. The undersigned agrees with one of the witnesses at this matter, Director of Field Services Tullock, who stated that there is a proper chain of communication or command. However, the evidence preponderates that 5 The only possible suggestion of rudeness on the part of Grievant was the complaint filed against Grievant by Ms. Birdwell. The complaint by Ms. Birdwell was not a basis for the instant disciplinary action against Grievant. 13

15 Grievant believed she had Manager Keeton s approval to send the at issue. For this reason, Grievant did not deliberately or intentionally breach the chain of command. 13. Nor does the evidence preponderate that Grievant is unethical or violated the BPP s Code of Ethics. 14. It is clear that Grievant takes her job very seriously. It is also clear that Grievant takes pride in doing her job well. 15. TBI Director Gwyn, the recipient of Grievant s , characterized his dealings with Grievant as professional and pleasant. 16. Could Grievant have handled the Birdwell TBI incident better or differently? Undoubtedly. However, simply because the Grievant could have handled the incident in a better or different fashion does not mean that she violated personnel and agency rules which should subject Grievant to discipline. 17. Assuming, for the sake of argument, that Grievant was rude or unpleasant to the TBI, in light of Grievant s excellent job performance and her strong support from court personnel; would the appropriate discipline be a suspension? Considering all the circumstances and Grievant s excellent employment record, appropriate discipline for an alleged isolated and single act of rudeness would more likely be a reprimand. 18. It is determined, by a preponderance of the evidence, that Claimant did not violate the rules and regulations as charged. Accordingly, it is not necessary to discuss what the appropriate discipline would be. 14

16 19. Claimant s testimony was deemed credible. The evidence preponderates that the decision-makers in this matter were not given complete and accurate information regarding Manager Keeton s role in sending the to TBI Director Gwyn. Claimant s one day suspension is VACATED, Claimant shall be paid the lost wages due to the suspension, and this matter shall be DISMISSED. It is so ordered. Entered and effective this 18th day of November, Thomas G. Stovall, Director Administrative Procedures Division 15