[00:00:00] Speaker 02:
to personally welcome Judge Schrader who is here from Texas visiting with us.

[00:00:04] Speaker 02:
We all thank him for being here and hope he's enjoying his experience.

[00:00:10] Speaker 02:
The first case for argument this morning is Washington versus the Bureau of Prisons, number 231566.

[00:00:21] Speaker 02:
Mr. Bishop, when you're ready.

[00:00:24] Speaker ?:
Yes, Your Honor.

[00:00:26] Speaker 03:
Your Honor, may I please support?

[00:00:28] Speaker 03:
My name is John Ed Bishop.

[00:00:29] Speaker 03:
I'm here on behalf of Petitioner Miss Callie Washington.

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The appeal in this case revolves around three central arguments.

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First, that the arbitrator was relying on non-facts when he made his decision.

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Secondly, that the arbitrator's interpretation of policy was erroneous and to the point it rose to the level of arbitrary and capricious.

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And then finally, that the untimely investigation did result in a due process violation not adequately found by the arbitrator.

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But for today's purposes, it may be better to kind of look at the charges themselves and apply those to the arguments that were made.

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The charges were threefold outlined in the revised proposal letter appendix 1239 through 1243.

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Charge one was a failure to conduct shoe rounds on August 24, 2019, specifically three issues, from 430 to 5 p.m., from 5 to 530 p.m., and from 6 to 630 p.m.

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Charge three was an introduction of contraband, an unauthorized electronic device.

[00:01:31] Speaker 02:
On the contraband, your client admitted that she violated policy, correct?

[00:01:37] Speaker 03:
Your Honor, if you hear what the investigator said, when we look at his testimony, and I can point that to you.

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I was asking, what, your client?

[00:01:49] Speaker 02:
No, my client admitted she bought into Apple Air.

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At 1208 of the appendix, I do acknowledge that I violated policy when I brought the earphones into the institution.

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And I understand that, Your Honor.

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How could we possibly

[00:02:03] Speaker 02:
do something about that.

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Because the investigator himself acknowledged when discussed that when he walked through the affidavit, there was an indication.

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Those affidavits were prepared by the investigator in order to, sorry, S.A.

[00:02:21] Speaker 03:
Newsome acknowledged that

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He looked him through these affidavits.

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She has stated repeatedly throughout that she never thought she was bringing in policy.

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Now at the time she gave the affidavit, she was aware that it was being told it was against policy.

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And if you look at her contacts, she has repeatedly said, after that I never brought them in again, but I brought them in repeatedly.

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And part of that, we'll go back to the due process issue of not being able to investigate and talk to all of our witnesses.

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There were individuals who left the front lobby that day.

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If she truly was bringing in contraband and what under policy was contraband, how did she get past the security screening without them flagging it?

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If she was wearing contraband throughout her shifts, how did any of those other officers not report her for wearing an air pod throughout the shift?

[00:03:14] Speaker 02:
That was a violation of policy.

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In terms of the missing witnesses, were you permitted to subpoena witnesses and did you do so?

[00:03:22] Speaker 03:
The subpoena panel has actually been argued by the BOP repeatedly whether or not they believe an arbitrator has the authority or any authority to subpoena witnesses.

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Whether the different position is taken, but their position is there is no subpoena authority.

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We may request our witnesses, which we did, through the witness list in the appendix.

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We called the witnesses throughout the

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I see all that you made a request for an adverse inference, given that certain witnesses didn't appear.

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Right.

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And the arbitrator apparently didn't grant the adverse inference.

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I don't see that issue being appealed.

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Do you agree with that?

[00:03:56] Speaker 03:
I agree we're not requesting for the adverse inference, but we do believe that there was a due process violation based on the untimeliness.

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As came out, Captain Weirich, whose testimony is extremely relevant to this case, had retired one month before the arbitration.

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and it was not produced.

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Did you attempt to call him?

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We have no contact information and there is no obligation to provide that information to us whether we are paid.

[00:04:20] Speaker 02:
But did you ask the arbitrator or tell the arbitrator you want this person as a witness at the arbitration?

[00:04:27] Speaker 03:
Yes sir, we attempted to call these witnesses and you can see in the appendix from 753 to 755 we called them on the record of the arbitration.

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Three pages worth of transcripts of us calling witnesses and the agency repeatedly telling the arbitrator they are not available and will not be produced.

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And did you preserve that?

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I mean, you didn't argue any of this.

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You argued that as a due process violation.

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That doesn't sound like a due process problem.

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That sounds like an evidentiary problem.

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And if the arbitrator failed to require the agency to produce a material witness, then that might have been error.

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But I don't see that in the briefs.

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The issue becomes one of timeliness.

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Had these been caught BOP employees, the BOP would have had no choice but to produce these.

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The fact that they took 910 days from the day that the incident occurred until they issued the decision resulted in the fact that these witnesses who would not have been retired but for that delay.

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And then for the arbitrator to make a factual finding, there was no harm or prejudice.

[00:05:32] Speaker 02:
Well, but I mean, that's a different question, too.

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But it doesn't appear, like, I'm not sure myself whether arbitrators have subpoena power or not.

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But you didn't ask the arbitrator to issue a subpoena.

[00:05:45] Speaker 02:
No, sir.

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I cannot, at least in the record before you.

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And I would have to go through my notes, whether that was ever requested.

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But I do not recall a subpoena ever being requested.

[00:05:56] Speaker 02:
One potential prejudice, which I think maybe you develop in your reply brief, so I'm concerned that that may be too late, is that initially there was like a 35-day suspension recommendation.

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And then there was the Jeffrey Epstein suicide.

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And then things apparently became more strict in terms of sanction when there was a suicide.

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And then your client ended up being removed.

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Do you argue that that's prejudiced, that because it took so long, the BOP policy changed and became more severe?

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And if that is your argument, well, there might be merit to that, but I'm concerned you may have waived or forfeited that argument.

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And I don't believe we did.

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I believe that we have addressed the due process issue of untimeliness in the original brief.

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We also got some discussion between Bodie and Ross in the

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in the brief by the agency.

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It's probably developed a lot more in the reply brief.

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But no, you're absolutely correct.

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There was a BOP policy change between March 21 and August of 2021.

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It's acknowledged in the appendix on page 188.

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Part of that, though, both the proposing official, the original proposing official, had proposed a 35-day suspension.

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The warden acknowledged on the record that he had made the decision he was only going to suspend her in 35 days.

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But he didn't issue a decision.

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He never issued the decision because between that March 21 and August 21, a policy change instituted, and the warden's decision was changed by some unknown deciding official who came back and said, no, you're going to terminate this employment.

[00:07:38] Speaker 02:
uh... who did the ultimate final decision uh... uh... the agency as a whole changed its policy on this and directed

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the individuals involved here take another look under the new policy.

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Is the agency not permitted to do that?

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The agency is permitted to review and to go through the process, but ultimately the proposal is in the hands of the proposing official, who should be the supervisor with the direct knowledge

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which, of course, in this case once had changed, no longer was.

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And then the deciding official said, these are the ones who ultimately make the decision.

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When the Warren Institute said he had made a decision in reviewing it, a decision had been made at that point.

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And conversely, not as a matter of law until it's actually issued to your client.

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Right.

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But the issue was, had that

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Delay not occurred.

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Had we not had a 910-day gap, that decision should have been rendered well prior to any BOP policy change in March of 2021.

[00:08:48] Speaker 02:
Well, I mean, I don't understand why that delay is per se harmful error in a constitutional sense.

[00:08:56] Speaker 02:
Sure, your client might have gotten lucky if she'd gotten through the suspension process before the agency change of policy, but she didn't.

[00:09:05] Speaker 02:
I mean, there's nothing wrong with the agency changing policy and recognizing that perhaps they need to be more serious about suicide watch.

[00:09:15] Speaker 03:
I would agree with you.

[00:09:16] Speaker 03:
This wasn't something that was addressed in the police, but you're asking about it, so I'm going to respond.

[00:09:21] Speaker 03:
If that's the case, if an agency is going to impose a stricter penalty on an employee, there's where a notice requirement comes in.

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You should be under notice not only of what is wrong,

[00:09:31] Speaker 03:
But what the penalties and what should happen to you if you're wrong.

[00:09:34] Speaker 02:
But she was under notice, right?

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Even under the old policy, the penalty for failure to do this watch on a first offense went all the way to removal.

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So she was on notice that even one instance of violating her duty to do rounds could result in removal.

[00:09:52] Speaker 02:
Would you be honored not to give that much?

[00:09:55] Speaker 03:
Credence to it, but that's in the table of penalties for almost every single penalty says letter of reprimand to removal MSPB and I can't recall discord has followed with that has said such a broad range of penalties provides Really no guidance.

[00:10:12] Speaker 03:
I mean when every almost every penalty is all the way from letter of reprimand to removal

[00:10:17] Speaker 03:
But yes, Your Honor, under the technical loading, yes, there was an issue where removal could have been an issue for technically any violation.

[00:10:29] Speaker 02:
But what I was pulling... You're into your rebuttal.

[00:10:32] Speaker 02:
You can save your time for rebuttal.

[00:10:35] Speaker 03:
At this point, I'll save my time for rebuttal, Your Honor.

[00:10:38] Speaker 02:
Thank you.

[00:10:38] Speaker 02:
Let's hear from the government.

[00:10:53] Speaker 01:
Good morning, Your Honors.

[00:10:54] Speaker 01:
May it please the Court.

[00:10:57] Speaker 01:
Miss Washington does not give this court any reason to disturb the arbitrator's decision.

[00:11:02] Speaker 01:
Miss Washington admitted to all of the facts underlying each of the charges and sworn affidavits and testimony.

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It is important to note the context in which all of her conduct occurred.

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She worked in the special housing unit, which was a jail within a jail where inmates relied exclusively on correctional officers for all of their needs.

[00:11:25] Speaker 01:
She admitted to violating her supervisor's instructions on two separate occasions.

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She admitted on August 24th of 2019 to failing to conduct rounds during a relevant time when an inmate died by suicide.

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And she also admitted that on that same day, she brought an AirPods into the institution.

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And at the beginning of her shift and throughout her shift, until the time when they discovered the inmate, she was listening to music in her ear.

[00:11:56] Speaker 02:
The arbitrator repeatedly says that she admitted she failed to complete her rounds in the shoe.

[00:12:05] Speaker 02:
Isn't that an overstatement from what she admitted?

[00:12:09] Speaker 02:
She admitted that she understood the various shoe officers were ultimately all responsible for all the rounds, but she contended that she and, I think, Officer Martinez, but one of the other ones, had split things up.

[00:12:26] Speaker 02:
And she insists she did her part within the split.

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But yet the arbitrator repeatedly says not only did she not do her rounds, but that she admitted she did not do her rounds.

[00:12:39] Speaker 02:
That's not correct, is it?

[00:12:41] Speaker 01:
It is, Your Honor, because all three officers in their sworn affidavits acknowledge that the rounds are not assigned to any specific individual.

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The rounds are the responsibility of each individual.

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So essentially, she is admitting that the rounds in the Northwest quadrant were her responsibility as well.

[00:13:02] Speaker 01:
And she did admit to not completing those rounds.

[00:13:06] Speaker 01:
So I don't think that's an oversimplification.

[00:13:08] Speaker 01:
excuse me, an overstatement of what she admitted to.

[00:13:11] Speaker 02:
If, just for the sake of argument, if I, so one place the arbitrator says that A6, she admitted she did not conduct her rounds in the Northwest Quad, if I think the arbitrator misunderstood her admission, that she was saying I'm responsible for Northwest, that is, in the split, I agreed I would do Northwest and I admit I didn't do it, could we still affirm and if so, how?

[00:13:37] Speaker 01:
Yes, Your Honor, because the testimony was that even if officers split their rounds, they were required to still check in with each other to confirm that the rounds were conducted.

[00:13:49] Speaker 01:
And she testified that she never bothered to do that.

[00:13:53] Speaker 01:
She did not contact Officer Martinez.

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She did not review the round log.

[00:14:02] Speaker 01:
And she otherwise didn't even know that the round didn't

[00:14:05] Speaker 01:
were not completed until after the inmate was found dead in his cell.

[00:14:10] Speaker 01:
So I think collectively the evidence clearly shows that she knew it was her responsibility as well, and she failed to complete them.

[00:14:21] Speaker 02:
I want to address a couple of the things that were mentioned during... Can you talk about the order to redo the proposal?

[00:14:30] Speaker 02:
Yes, sure.

[00:14:31] Speaker 02:
I mean, at a certain point,

[00:14:34] Speaker 02:
upper-level agency officials can't interfere with the proposing official and the deciding official's decisions, right?

[00:14:42] Speaker 01:
Your Honor, here the testimony was clear, and Ms.

[00:14:47] Speaker 01:
Brown testified regarding this, that the warden ultimately had the decision-making authority.

[00:14:55] Speaker 01:
And he was free to overrule the proposal, the proposed letter.

[00:15:01] Speaker 02:
To remove?

[00:15:02] Speaker 02:
Yes.

[00:15:05] Speaker 02:
the situation be that, hypothetically, instead of just having the proposal for 35 days and the law and thinking he was going to sustain it, but actually sustaining it and issuing a decision, and then the agency sees that and comes back and says, no, that's not severe enough.

[00:15:23] Speaker 02:
You need to redo this.

[00:15:25] Speaker 02:
Would that be a problem?

[00:15:27] Speaker 01:
I think under those circumstances, I think it gets closer to being a problem based on some of the case law that we've

[00:15:35] Speaker 01:
that we've discussed in our brief, but that's not what occurred here.

[00:15:40] Speaker 01:
Here, it was, as Your Honor just pointed out, momentarily, there was an agency shift.

[00:15:47] Speaker 01:
So the shift did not happen simply, it did not apply only to Miss Washington.

[00:15:53] Speaker 01:
It applied across the board.

[00:15:54] Speaker 02:
Do we know what happened to the other person that didn't complete

[00:16:02] Speaker 02:
the same rounds and was actually supposed to do the rounds where this inmate was located?

[00:16:08] Speaker 01:
Officer Martinez, yes, Your Honor.

[00:16:10] Speaker 01:
We know that at the time of our arbitration hearing, he was no longer employed at the agency.

[00:16:15] Speaker 01:
The warden testified that initially a letter of proposed removal was issued against him.

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However, he did provide an oral response in several mitigating circumstances.

[00:16:27] Speaker 01:
So after that, I believe that he was demoted.

[00:16:29] Speaker 01:
But as far as

[00:16:31] Speaker 01:
the exact reasons for his departure from the agency.

[00:16:35] Speaker 01:
That's not on the record.

[00:16:36] Speaker 01:
And I did request that information, but unfortunately did not get it in time.

[00:16:40] Speaker 02:
So he, even though he was the one that, and I understand that they were both responsible for all the rounds, but he's the one that actually didn't do the lodge.

[00:16:50] Speaker 02:
He ended up with the less severe punishment than Ms.

[00:16:56] Speaker 02:
Washington.

[00:16:57] Speaker 01:
That's correct.

[00:16:58] Speaker 02:
Why isn't that a disparate penalty?

[00:17:00] Speaker 01:
It is not, Your Honor, and the warden specifically explained this situation when he was discussing his rehabilitation analysis of Miss Washington.

[00:17:16] Speaker 01:
He stated that he had serious doubts about any potential for rehabilitation because in the union's response, there was no acceptance of responsibility for her actions.

[00:17:26] Speaker 01:
He also testified that she never apologized or indicated that she would not do the misconduct again.

[00:17:32] Speaker 01:
He also explained that the oral and written responses aid him in failing on the right or justifiable sanctions for discipline.

[00:17:40] Speaker 01:
Without the same, that hinders his analysis process.

[00:17:45] Speaker 01:
We're not sure what the mitigating circumstances for Officer Martinez were, but we know that he did provide an oral and written response and mitigating circumstances.

[00:17:57] Speaker 01:
it's clear on the record that Ms.

[00:17:59] Speaker 01:
Washington failed to do that.

[00:18:01] Speaker 00:
May I ask a question following up on the questions Judge Hughes and Judge Stark asked about the allegation that petitioner makes that the length of the investigation was arbitrary and capricious and that potential testimony was lost

[00:18:21] Speaker 00:
that would have been helpful to the petitioner.

[00:18:26] Speaker 00:
Do you know whether the arbitrator has the ability to issue a subpoena to compel attendance at a hearing?

[00:18:33] Speaker 01:
Your Honor, we do know that there is one statute 5 U.S.D.

[00:18:39] Speaker 01:
5783 that

[00:18:42] Speaker 01:
which states that an arbitrator has the authority to compel the attendance of witnesses.

[00:18:47] Speaker 01:
Of course, this issue was not litigated below because Ms.

[00:18:51] Speaker 01:
Washington did not attempt to compel any of the witnesses that she wanted to be present at the hearing.

[00:18:57] Speaker 01:
She also indicates that

[00:19:01] Speaker 01:
She had no way of requesting information about the individuals that had retired from the agency.

[00:19:09] Speaker 01:
But pursuant to 5 U.S.C.

[00:19:12] Speaker 01:
7114b4, the union does have the ability to request data regarding information for those individuals.

[00:19:23] Speaker 01:
And again, she did not do that either.

[00:19:24] Speaker 01:
And Ms.

[00:19:27] Speaker 01:
Washington

[00:19:28] Speaker 01:
does claim that the agency had the requirement to produce those witnesses.

[00:19:33] Speaker 01:
However, the agency has its burden to prove the charges.

[00:19:36] Speaker 01:
The agency gets to decide which witnesses are most relevant to meet its burden.

[00:19:41] Speaker 01:
There's nothing in the master agreement that requires the agency to produce or to compel witnesses that are not employed by the agency.

[00:19:52] Speaker 01:
I'll address your Honor's questions regarding the timing and the prejudice by the unavailability of those witnesses.

[00:20:00] Speaker 01:
Regarding the timing, the evidence showed that there was no investigative special agent at the FTC Miami between August 2019 and January 2020 when investigator Newsom began

[00:20:16] Speaker 01:
his position in January, he had over 65 active cases.

[00:20:21] Speaker 01:
Moreover, both he and the warden testified that Miss Washington's own unavailability and her frequent missing of her regularly scheduled shifts contributed to some of the delay.

[00:20:34] Speaker 01:
Of course, there was also Miss Brown that was unavailable for part of the time due to medical reasons.

[00:20:43] Speaker 01:
Between the initial proposed letter and the final decision letter, there were, of course, two union responses, which collectively took a couple of months.

[00:20:56] Speaker 01:
And again, the warden testified that it took some time because of Ms.

[00:20:59] Speaker 01:
Washington's unavailability.

[00:21:01] Speaker 02:
In terms of whether Ms.

[00:21:03] Speaker 02:
Washington was prejudiced by the delay or the time it took to complete the investigation, the only thing I saw the arbitrator saying about that was that A13, that she was on notice, that the matters were being investigated so she was not prejudiced by the delay.

[00:21:18] Speaker 02:
Is that an adequate consideration of the arguments she was making about how she was prejudiced?

[00:21:25] Speaker 01:
Well, Your Honor,

[00:21:27] Speaker 01:
As the panel noted earlier, Ms.

[00:21:29] Speaker 01:
Washington merely requested an adverse inference for the unavailability of witnesses.

[00:21:35] Speaker 01:
It's correct that Ms.

[00:21:40] Speaker 01:
Washington was on notice.

[00:21:43] Speaker 01:
She was on notice from early 2020.

[00:21:48] Speaker 02:
I think it's undisputed she's on notice.

[00:21:50] Speaker 02:
My question really is,

[00:21:52] Speaker 02:
Is that all she was arguing?

[00:21:54] Speaker 02:
I'm prejudiced because I wasn't on notice?

[00:21:59] Speaker 02:
That is, doesn't the arbitrator have an obligation to consider the argument she made for prejudice, and if so, did the arbitrator do that?

[00:22:07] Speaker 01:
I think the arbitrator certainly did that, Your Honor.

[00:22:09] Speaker 01:
Perhaps he could have been a little bit more detailed in his analysis, but I think it was clear that

[00:22:16] Speaker 01:
that he didn't consider any prejudice to be present here.

[00:22:21] Speaker 01:
The prejudice that she claims is regarding the unavailability of witnesses.

[00:22:26] Speaker 01:
Here, she's complaining that the proposing officials were unavailable.

[00:22:32] Speaker 01:
In particular, she discusses that Captain Weirich would testify regarding the loss of confidence, which is Douglas Factor Number 5.

[00:22:41] Speaker 01:
However, he retired.

[00:22:44] Speaker 01:
He would no longer be supervising her anyway, and the warden testified that his own confidence in Miss Washington was greatly diminished.

[00:22:53] Speaker 01:
Additionally, the warden was available and cross-examined.

[00:22:59] Speaker 01:
And regarding whether Captain Medina would have been able to testify as she claims consistently with the warden that the first charge was actually not sustained, that's inaccurate.

[00:23:10] Speaker 01:
The warden only conceded that one of the specifications was not sustained.

[00:23:16] Speaker 02:
On the adverse inference, it seems clear that the arbitrator didn't draw an adverse inference, but does the arbitrator ever

[00:23:22] Speaker 02:
deal with that expressly and say, I was asked, and I'm rejecting that request?

[00:23:27] Speaker 01:
I'm not sure of the exact legal requirement on that point, Your Honor.

[00:23:32] Speaker 01:
But I think that as long as the decision is that, excuse me, the decisional path is evident from the entirety of the opinion, I think, that the court can certainly affirm on that basis.

[00:23:51] Speaker 01:
Last thing, I know I'm running out of time, so I wanted to address Ms.

[00:23:57] Speaker 01:
Washington's contention that she was prejudiced by the change in position in the agency shift between the suspension and the removal.

[00:24:09] Speaker 01:
As the panel noted recently, she did not elaborate on that in her opening brief, and she has waived that issue.

[00:24:16] Speaker 01:
Additionally,

[00:24:19] Speaker 01:
would have had the ultimate decision-making authority here.

[00:24:22] Speaker 01:
The decision was within the table of penalties.

[00:24:27] Speaker 01:
Each of the charges here carried individually a punishment of up to removal.

[00:24:34] Speaker 01:
And the reason why, as Ms.

[00:24:37] Speaker 01:
Washington claims, that the range was too broad here is because we are dealing with a correctional institution, where one mistake could lead to disastrous consequences.

[00:24:47] Speaker 02:
After the new proposal to remove it, the warden had thought that 35 days was really still the appropriate penalty.

[00:24:54] Speaker 02:
Could he have mitigated the penalty back down to 35 days?

[00:24:59] Speaker 01:
I think so, Your Honor, based on the fact that he testified that with regard to Officer Martinez, based on the mitigating circumstances that were presented, he chose a demotion rather than removal.

[00:25:11] Speaker 01:
So I think it would have depended on the mitigating circumstances.

[00:25:16] Speaker 00:
Yes.

[00:25:18] Speaker 00:
So there are three charges, I think.

[00:25:21] Speaker 00:
I guess I'm interested in what you believe should happen procedurally if one of those charges, if we felt like one charge should be overturned.

[00:25:34] Speaker 00:
The argument the petitioner makes is that the arbitrator abused his discretion by failing to analyze the Douglas Factors.

[00:25:46] Speaker 00:
What procedurally would happen at that point?

[00:25:49] Speaker 00:
Would the case need to be remanded for an analysis of the Douglas Factors?

[00:25:56] Speaker 01:
I think, Your Honor, generally speaking, if unless there's evidence on the record that the agency would have reached a decision, regardless if one of the charges was unmet, then perhaps a new analysis might be required.

[00:26:12] Speaker 01:
Here, the warden testified that he 100% believed that even without one of the specifications, the removal was reasonable.

[00:26:22] Speaker 01:
And I think in reviewing his testimony as a whole and his decision letter, he considered each of the charges to be very severe.

[00:26:33] Speaker 01:
So I believe that under those present facts, that affirmance is still appropriate.

[00:26:41] Speaker 04:
Thank you.

[00:26:41] Speaker 01:
Thank you, Your Honors.

[00:26:48] Speaker 02:
Mr. Bishop, you have a little under five minutes left.

[00:26:51] Speaker 03:
Thank you, Your Honor.

[00:26:53] Speaker 03:
To address a few of the issues,

[00:26:55] Speaker 03:
First, as far as the arbitrator designating those as her rounds.

[00:26:59] Speaker 03:
As the author pointed out, he did so over seven times in just the very few pages he actually provided any insight.

[00:27:06] Speaker 03:
And then he further annotated how bad his misunderstanding was.

[00:27:11] Speaker 03:
He goes on to say Gonzales himself, the inmate who committed suicide, was on the round or the area that the grievant was assigned.

[00:27:19] Speaker 03:
It's understood that he was on the Northwest, that if there was an assignment, that was Martinez's assignment.

[00:27:26] Speaker 03:
Well, he then goes on to state that another officer assigned – I'm sorry, Your Honor.

[00:27:31] Speaker 02:
I'm going to stop when I'm talking.

[00:27:32] Speaker 02:
I apologize.

[00:27:33] Speaker 02:
You're talking about assignment – the split as if that was an official assignment.

[00:27:37] Speaker 02:
But that's not true, right?

[00:27:38] Speaker 02:
It's – the assignment is for the whole area that the – the guards themselves can agree to informally split, but the – but the actual duty shift is for the whole area, isn't it?

[00:27:50] Speaker 03:
No, but the policy says a staff member.

[00:27:52] Speaker 03:
If a staff member, doesn't have to be she, is doing that round, all policies are met.

[00:27:58] Speaker 03:
So by Martinez saying, I'm doing this round while you're doing hers, and there's no doubt she did hers, the photographs and the evidence show up the times in question.

[00:28:06] Speaker 03:
There was a picture of her on her range.

[00:28:09] Speaker 03:
doing her round.

[00:28:10] Speaker 03:
It's not like she wasn't performing rounds and sitting in the office.

[00:28:13] Speaker 03:
The evidence indicated what she was doing.

[00:28:17] Speaker 02:
But she also was responsible for ensuring that the entire round was done.

[00:28:22] Speaker 03:
If they were imposing a strict liability on every one of those officers,

[00:28:26] Speaker 03:
as to things they have no ability whatsoever to see.

[00:28:29] Speaker 02:
If you say that you have... Sure, they don't have to see them, but they can call the other officer or require the other officer to call them and say, we've done our checks, right?

[00:28:36] Speaker 03:
Remember, that officer falsified the sheet indicating he had done the round.

[00:28:41] Speaker 02:
So, I mean, there's no... The sheet didn't check until after the inmate committed suicide.

[00:28:46] Speaker 03:
We know she didn't specifically ask, but if you recall the evidence, whenever they open the doors, those are called on the radio.

[00:28:53] Speaker 03:
Both the Warden and Newsom admitted that they were caught because remember they can't even access that range until the shoe number one officer unlocks the door to let them in.

[00:29:03] Speaker 03:
So they had unlocked the door to let her in her range and then unlocked the door to allow Martinez on his range.

[00:29:09] Speaker 03:
That should have been called onto the radio.

[00:29:11] Speaker 03:
Now what Martinez did when he was on that range

[00:29:15] Speaker 03:
How can she know what was done?

[00:29:18] Speaker 03:
We do know that she was performing rounds.

[00:29:20] Speaker 03:
And in this case, the arbitrator specifically says that was her assignment.

[00:29:24] Speaker 03:
It wasn't her assignment.

[00:29:25] Speaker 03:
It was assigned to a staff member, but not her specifically.

[00:29:29] Speaker 03:
And he even goes on and doubles down by saying, another officer signed his initials in the grievance place on the log.

[00:29:37] Speaker 03:
How was that the grievance place on the log?

[00:29:39] Speaker 03:
That was the place on the log as to whoever did the round, and in this case, Martinez indicated.

[00:29:44] Speaker 03:
It's clear the oil trader did not understand the facts surrounding here and mistakenly believed that she was specifically told or indicated to do that round.

[00:29:56] Speaker 02:
I understand why you would not want a strict liability policy, but what legal prohibition is there on the agency deciding its policy is strict liability among all the SHU officers?

[00:30:10] Speaker 03:
Honestly, that would probably be a complete briefing issue as to the imposition there.

[00:30:15] Speaker 03:
But the issue, you cannot hold an employee responsible for something outside of their control.

[00:30:23] Speaker 03:
I mean, so what if she had called Officer Martinez and Officer Martinez said, I did the round.

[00:30:29] Speaker 03:
Is she now still liable because he lied to her?

[00:30:32] Speaker 03:
Where does that line draw in this case?

[00:30:34] Speaker 03:
He indicated he did the round.

[00:30:36] Speaker 03:
She had no reason not to believe it was done.

[00:30:39] Speaker 03:
I'm sorry.

[00:30:41] Speaker 03:
Secondly, if I have just a quick moment, I would like to address the same factual issue on the introduction of contraband.

[00:30:47] Speaker 03:
Both the warden and then the arbitrator made some very faulty technological conclusions.

[00:30:53] Speaker 03:
The warden stated that if she had AirPods, well, then she had to have had a cell phone, even though there was no allegation, investigation, or evidence that she had a cell phone.

[00:31:02] Speaker 03:
The arbitrator himself being with AirPods themselves contraband.

[00:31:07] Speaker 03:
According to the HR manager, she wasn't sure.

[00:31:12] Speaker 03:
She said there was no memorandum in place.

[00:31:15] Speaker 03:
It says all electronic devices, but we're allowing some and not others.

[00:31:19] Speaker 03:
Smartwatches.

[00:31:20] Speaker 03:
She acknowledged she had a smartwatch.

[00:31:22] Speaker 03:
That was perfectly allowed, even though that's a Bluetooth capability, as long as it had no cellular.

[00:31:28] Speaker 03:
Yet the arbitrator made a, again, faulty technology that if she had AirPods and a smartwatch, well then she can make a phone call.

[00:31:35] Speaker 03:
There's nothing to support that her smartwatch had any cellular capability, and the record is clear from the wording and the HR that the smartwatch was permitted.

[00:31:45] Speaker 02:
Okay, Counselor, you're out of time.

[00:31:46] Speaker 02:
Thank you.

[00:31:47] Speaker 02:
The case is submitted.