TENNESSEE BOARD OF PROBATION AND PAROLE, Petitioner, vs. TERRY ZAIKO, 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. TERRY ZAIKO, 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 TENNESSEE CIVIL SERVICE COMMISSION IN THE MATTER OF: ) ) TENNESSEE BOARD OF ) PROBATION AND PAROLE, ) Petitioner, ) ) v. ) DOCKET NO J ) TERRY ZAIKO, ) Grievant. ) INITIAL ORDER This contested administrative matter was heard on November 28, 2007, before James A. Hornsby, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division, and sitting for the Tennessee Civil Service Commission in Nashville, Tennessee. The Grievant, Terry Zaiko, was present without counsel. C. Edward Scudder, Jr., counsel for the Board of Probation and Parole, was present and represented the State. The matter became ready for consideration on January 28, 2008, after the parties had an opportunity to file proposed findings of fact and conclusions of law. The subject of this proceeding is the proposed assessment of two three-day suspensions for the Grievant s alleged unsatisfactory job performance and misconduct. After consideration of the entire record and the arguments of counsel, it is ORDERED that the Grievant be assessed the two three-day suspensions, without pay. This determination is based upon the following Findings of Fact and Conclusions of Law: 1

3 FINDINGS OF FACT 1. The Grievant, Terry Zaiko, is employed as a Probation and Parole Officer II (hereafter parole officer ) with the Tennessee Board of Probation and Parole (hereafter Board ). He has worked there for approximately twenty-three years. 2. The duties of a parole officer include establishing reporting schedules for offenders, verifying employment, monitoring compliance with court rules and the law, monitoring payment of various fees, verifying residence, and conducting home visits. 3. Parole officers determine the necessary level of supervision for each offender based on a risk and needs assessment. An offender s supervision can range from intensive, which requires four personal contacts and two home visits each month, to minimal suspension, requiring the parole officer to make only one annual assessment and report. In addition, a parole officer will conduct mandatory drug testing on offenders as dictated by the Board s policies and supervision manual, including random drug testing. 4. Parole officers are assigned responsibility for monitoring a certain number of offenders. They have a computer generated list of duties to perform for each of their assigned offenders and typically perform those duties without direct supervision. They keep written records of their daily activities and submit a monthly report to their managing supervisor. The supervisor compares the list of duties that should have been performed with the Parole officer s monthly report to determine the officer s compliance with assigned tasks. The officer then receives a compliance score based upon the percentage of tasks completed. 2

4 5. Monthly compliance scores are important for the Board s management of its parole officers, and officers are required to keep their monthly percentage of tasks completed above 90%. The Board s policy # , Section VI(B4), states that If an officer s compliance drops below 90 percent compliance for two consecutive calendar months, the supervisor shall notify the district director in writing. Corrective or disciplinary action shall be taken with the officer. 6. Sometimes a parole officer cannot perform a specific task because the offender does not cooperate. For example, an officer goes to an offender s residence for a scheduled home visit and the offender is not home. In that case, the officer can take a remedial action, such as putting a note on the door of the residence and rescheduling the visit date. The officer can then enter an X code on his daily activities report and get credit for having tried to perform that task. 7. The problems that led to the disciplinary actions against the Grievant in this matter began in 2004 when he began to fall behind in performing his assigned tasks. The Grievant did not perform some home visits and used the X code on his daily activities indicating that he had attempted to make home visits, when in fact he had not. 8. On February 7, 2005, the Grievant received an oral reprimand for failing to make home visits. His compliance did not improve, and on May 23, 2005, he received a written reprimand that again noted his failure to make home visits and also noted that his task compliance percentage for April of 2005 was below acceptable standards. The reprimand stated that his unacceptable job performance cannot be tolerated. 3

5 9. The Grievant s supervisor met with him on a number of occasions to help resolve the Grievant s problems with task performance, but although the number of home visits improved, the Grievant s overall performance of his assigned tasks did not. 10. On March 29, 2006, the Grievant was sent notice that he was receiving a three-day suspension without pay. The notice advised the Grievant that his monthly task performance percentages had been below 90% for seven of the last eight months. 11. The Grievant was directed to take the suspension mid-week in May of 2006, but he instead took the suspension in conjunction with a weekend. He then filled out and filed his monthly attendance sheet for May with no mention of the three-day suspension. On July 5, 2006, the Grievant received a second three-day suspension without pay for falsification of an official record. CONCLUSIONS OF LAW 1. The Grievant has been assessed two three-day suspensions for unsatisfactory job performance and misconduct. Specifically he is alleged to be in violation of the following sections of the Tennessee Department of Personnel Rule : (1) Inefficiency or incompetence in the performance of duties. (2) Negligence in the performance of duties. (8) Gross misconduct unbecoming an employee in the State service. (10) Willful abuse or misappropriation of State funds. (11) Falsification of an official document relating to or affecting employment. 4

6 (12) Participation in any action that would in any way seriously disrupt the normal operation of the agency or that would interfere with the ability of management to manage. (18) Refusal to accept a reasonable and proper assignment from an authorized supervisor (insubordination). 2. It is DETERMINED that the Grievant has violated all of the rules set out above. Subsections (1) and (2) were violated by his failure to perform home visits with offenders and his failure to perform a sufficient percentage of his monthly assigned tasks to keep his monthly compliance percentage above 90%. The Grievant s excuse that he was assigned more work than he could reasonably do is not convincing because his fellow parole officers were assigned a comparable case load, and he was the only one who was unable to comply. 3. The importance of monitoring paroled offenders for public safety is obvious. The Grievant had numerous counseling sessions with his supervisor, one official oral warning and one written warning and still his compliance with his assigned tasks did not improve. It is DETERMINED that a three-day suspension for his failure to perform his assigned duties is appropriate. 4. Subsections (8), (10), (11), (12) and (18) were violated by his taking his first three-day suspension at a time other than assigned and for submitting his monthly attendance report without deducting the suspended days. His excuses that he forgot or misunderstood are not credible. It is DETERMINED that a three-day suspension for these violations is reasonable. 5

7 5. Therefore, it is ORDERED that for Grievant, Terry Zaiko, be, and is hereby, assessed two three-day suspensions without pay. This Initial Order entered and effective this 20th day of February, James A. Hornsby Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State this 20th day of February, Thomas G. Stovall, Director Administrative Procedures Division 6