WARREN COUNTY NEW YORK, Employer BRIEF AND CLOSING STATEMENT ON BEHALF OF KATHLEEN PLUMMER

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1 STATE OF NEW YORK COUNTY OF WARREN IN THE MATTER OF THE HEARING UNDER 75 OF THE CIVIL SERVICE LAW BETWEEN WARREN COUNTY NEW YORK, Employer against KATHLEEN A. PLUMMER, Employee BRIEF AND CLOSING STATEMENT ON BEHALF OF KATHLEEN PLUMMER Daniel J. Stewart, of Counsel BRENNAN & WHITE, LLP Attorneys for Employee Kathleen Plummer 163 Haviland Road Queensbury, NY 12804

2 TABLE OF CONTENTS STATEMENT OF FACTS... 3 RELEVANT REGULATIONS AND CRIMINAL STATUES... 3 THE GRIEVANCE/PEN AND PAPER INCIDENT... 5 INCIDENT OF SEPTEMBER 26, INSUBORDINATION TO OFFICER KELLY... 9 OCTOBER 11, 2011 INCIDENT - DISCREDIT TO AGENCY CONCLUSION

3 I. STATEMENT OF FACTS By agreement of the parties, the present 75 hearing covers several notices of discipline. Those notices are dated August 18, 2011; October 5, 2011; and October 13,2011. The initial two charges involved Kathy Plummer providing an inmate who was in disciplinary housing, and whose personal items had been taken away, with a pen and paper in connection with filling out an approved grievance form. The October 5, 2011 charges deal with two separate instances of alleged misconduct: (1) statements made or action taken before Lt. Clifford at a counseling session and (2) an sent to a fellow officer regarding the suicide prevention screening of an inmate. Finally, the October 13, 2011 supplemental charges deal with statements made by the employee in her home to a Fort Edward police officer and her subsequent explanations of those statements. II. RELEVANT REGULATIONS AND CRIMINAL STATUES: OPERATION 305: CONTRABAND DEFINITIONS Authorized Contraband - Possession of any authorized article or thing, which has been altered in any manner as to change its original intent or purpose, possession of an authorized article or thing that was received by or provided to an inmate in a prohibited manner and/or the possession of any authorized article or thing in excess of the authorized amount GENERAL PROCEDURES 1. Items not listed on the Authorized Personal Property or Facility Issued Items list, which can be found in the section of this manual entitled "property", or have not been specifically authorized in writing, by a member of Corrections Administration, or their designee, shall not be considered contraband. 3

4 AUTHORIZED PROPERTY OPERATION 115 PROPERTY The following items are the only authorized property inmates are allowed to keep with their housing unit other than items purchased through the commissary. COMMISSARY ITEMS Any item purchased through the commissary shall be allowed in the housing units. 2. LAWFUL ORDERS REGULATION 29: CONDUCT OF MEMBERS A. It shall be the duty of all members to obey every lawful order issued orally or in writing by competent authority A member shall not speak disrespectfully to or of, any member or agency employee. A member shall not publicly express any derogatory statement criticizing the agency or any official action of any member. 22. A member shall not engage in misconduct or act in a manner tending to bring discredit upon the sheriff's department. 24. A member may be determined to be insubordinate and subject to disciplinary action if they: A) Speak and/or act in a disrespectful manner to a higher ranking member, either on-duty or off-duty. B) Provide a false response or omitting factual information to a higher ranking member making an inquiry. PENAL LAW PROMOTING PRISON CONTRABAND IN THE SECOND DEGREE. A person is guilty of promoting prison contraband in the second degree when: 4

5 1. He knowingly and unlawfully introduces any contraband into a detention facility or; 2. Being a person confined in a detention facility, he knowingly and unlawfully makes, obtains, or possesses any contraband. III. THE GRIEVANCE/PEN AND PAPER INCIDENT Kathy Plummer is a multi-year employee with the Warren County Sheriff s Department. 1 (T - 85) On or about June 23, 2011 she reported to work on the B line, and was assigned to the linear section of the jail, which is the functional equivalent of disciplinary housing. (T - 91) When she arrived at the jail she had contact with an inmate by the name of Ruben McDowell. Mr. McDowell had had his property taken away as a form of discipline in connection with a charge of a misconduct that was lodged against him.(t ) The inmate, Ruben McDowell, requested permission from CO Plummer to file a grievance. (T - 92) 2 Following the chain of command, Kathy Plummer conveyed that request to the Sergeant on duty, Sergeant VanWinkle. (T - 92) Pursuant to his directive, the inmate was authorized to submit a grievance and Sergeant VanWinkle provided to him a copy of a grievance form for that specific purpose. (T ; ) Kathy Plummer was specifically aware and advised of the actions and directives of Sergeant 1 Reference to the disciplinary hearing transcript are denoted T -. 2 Apparently the grievance was ultimately successful and the disciplinary charges were dismissed by Captain Gates. (T - 92). 5

6 VanWinkel in connection with the authorization to have the inmate fill out the disciplinary form. (T ) The inmate was not provided the means necessary to fill out the form; namely a pen. (T - 94; 226) The inmate requested that Officer Plummer provide to him his own pen and a piece of paper so that he could fill out the form and also maintain a copy. (T - 95) Officer Plummer complied with that request, so as to allow the inmate to fill out a grievance, said grievance having specifically been authorized by an officer in a higher chain of command, namely Sgt. VanWinkle. After being provided a pen, the inmate filled out the form. The grievance form was ultimately filed, and the pen was returned together with a piece of paper that was apparently placed in the inmate s tote. (T - 41; 60-61; 98). Part of this event was observed by Investigator Marlo Barboza. According to Kathy Plummer, Investigator Barboza was upset that the inmate was filling out a grievance. (T - 98) She specifically asked CO Plummer where he got the grievance, and Kathy Plummer indicated that the Sergeant provided it. (T - 98, 60-61) She then asked where the inmate obtained the pen and the paper, and Kathy Plummer truthfully advised that she in fact had provided to it him. (T - 98, 60-61) Some testimony was admitted with regard to the alleged disciplinary problems of inmate McDowell. The evidence established, however, that whatever prior issues inmate McDowell had, Officer Plummer herself had no difficulties with him. (T - 113) The inmate was authorized to have a pen through his purchase of it at the commissary, and despite his alleged history, and there was no jail prohibition about inmate McDowell having a pen or paper in general. (T - 76, 96) The taking of his property from his cell was, according to the evidence submitted, a penalty imposed upon him, but that did not prohibit him from filling out a grievance. (T - 95) There was testimony with regard to a suicide pen, which Officer 6

7 Plummer initially searched for and was unable to find. (T - 95) However, there is no evidence that inmate McDowell was suicidal in any manner. In addition, it is submitted that he posed no threat to anyone in filling out the form because he was alone in the cell and he returned the pen and paper specifically upon being asked. (T - 41; 70; 77; 98) Apparently later in the day inmate McDowell was moved to a different cell, and there is no evidence that he caused any difficulty or trouble to the corrections officers in connection with that move. (T ) Rather, the only evidence is that he availed himself to a grievance procedure which was specifically his right, which was specifically authorized by the Sergeant, and which he was ultimately successful upon. Kathy Plummer has been charged with two specific violations. The first alleges that she violated the Penal Law provision of promoting prison contraband, a misdemeanor and the second alleged violation of the rules and regulations in connection with contraband. With regard to the criminal law section, a plain reading of the criminal law section establishes that it does not apply. In order to satisfy the Penal Law, there would have to be a showing that that object was unlawfully brought into the facility. (Penal Law ; T - 44) There is no evidence that the pen was unlawfully brought into the facility. Rather, the evidence was that the pen in fact was provided by Warren County Official to this particular inmate through a purchase at the commissary. (T - 76, 96). With regard to the second charge, the County Officials allege that the item was "authorized contraband." In particular, the allegation is that the inmate was not authorized to have the pen because his property had been taken away from him. Initially, there was no evidence concerning who provided the order concerning taking the property away in the first place and whether that order was actually given or was done lawfully. Assuming for the moment that there was a lawful order to take the property away, that 7

8 order was modified or contramanded by the directive of Sgt. VanWinkle allowing the inmate to fill out a grievance form. That was an order that Kathy Plummer had specific knowledge of as she witnessed the form being provided to the inmate. As the Sergeant authorized the filling out of the form, and as the form could not be filled out without providing him a pen, the actions of Kathy Plummer were wholly consistent with that order, both in its letter and in its spirit. As the pen was necessary to fill out the form which was authorized, the pen itself is not contraband, and therefore this specific provision that is being utilized in this case has no applicability. For the foregoing reason it is respectfully requested that the first set of charges against Kathy Plummer be dismissed. If the Court was to uphold the charge and impose a penalty, it is respectfully submitted that the lightest possible penalty is imposed. As the testimony established, the officer was attempting to comply with what she understood to be the proper directive of the Sergeant and the right of the inmate to fill out a grievance. Had the corrections officer taken action to frustrate the inmate s attempt to fill out a grievance, she would have been in contravention of both the order of Sgt.VanWinkle and also the mandates of the Commissions of Corrections.(T - 47) While Officer Plummer acknowledges that, upon reflection, the better practice would have been to call the Sergeant and request further instructions, it is submitted that such a deviation would only require a minor correction. 3 IV. INCIDENT OF SEPTEMBER 26, INSUBORDINATION These charges arise form an incident on September 26, At that time, in the Warren County Sheriff's Office, Officer Plummer was in the presence of Lt. Daniel Clifford. Lt. Clifford was in the 3 The Supervisor's testimony was inconsistent. At first he acknowledged that he should have been called (T - 227), but he then testified that he would expect the officer to provide such a pen without calling him. (T - 230) 8

9 process of providing a warning letter to Kathy Plummer. It is alleged by Lt. Clifford that during that time period Officer Plummer was in a slouched posture which involved her hands in her pockets. In addition, in response to some of his questions, Officer Plummer responded "sure", as opposed to "yes" or "yes sir." In addition, Lt. Clifford maintains that he gave her a direct order to speak in a particular manner and that Officer Plummer still responded "sure" to at least one of his questions. While Officer Plummer did not testify specifically with regard to this incident, before this hearing officer is approximately an hour long taped conversation in which she makes comments with regard to this incident. (Exhibit 6) First, she acknowledges that she did say "whatever" to Lt. Clifford. 4 In addition, there is an indication that during this time period that Lt. Clifford was yelling at her during the course of the meeting and that Officer Plummer, who has a documented history of anxiety and depression (Exhibit 10), therefore responded in kind. (Exhibit 6; Exhibit 5) Lt. LaFarr testified that because it is a quasi military organization, the lower ranking officer does not have the right or the privilege to react in kind even in situations where they feel they are receiving verbal abuse. (T - 203) That being said, Lt. Crandall was only counseled for his actions at this meeting and therefore, it is submitted that a similar type of counseling would be warranted for Officer Plummer. Finally, I do believe that it is important for the hearing officer to listen to the statements of CO Plummer and Lt. Clifford that are contained in Exhibit 6. Specifically, Lt. Clifford noted that on no prior occasion has he ever had any difficulty with Kathy Plummer, that he worked well with her, and that this appeared to be a single event. In addition, the last 15 or so minutes of Exhibit 6 constitute a revealing discussion with regard to CO Plummer's concerns. While there is discussion about certain charges being 4 As noted by Lt. LaFarr in Exhibit 6, even at the hearing Officer Plummer had the tendency to say "sure" or "um-hum." 9

10 "nit picky," and a response by the Lieutenant regarding the need to enforce all regulations and to provide instruction through warning letters to create proper documentation, the discussion taken as a whole shows that Officer Plummer is very concerned about her job and the safety of the facility; that changes in the organization have made it difficult, especially for the female officers to do their work; and finally, that she is genuinely distraught. V. TO OFFICER KELLY The September 8, 2011 incident involves communication which was sent back and forth between Officer Plummer and Officer Kelly, a portion of which an contained in the charge as Exhibit 7. 5 During the course of that communication, Office Plummer indicated her dismay about the potential of having to stay on a suicide watch. Having dealt with jail suicides on several occasions in the past, both out of the Albany County Jail and the Schenectady County Jail, this counsel certainly realizes the significance of the suicide prevention screening test and all that it entails. There is no question that the itself should not have been sent. It is equally clear, however, that this at most was a venting exercise by Officer Plummer and in no way was it meant to actual deter the suicide prevention screening from being performed. Indeed, Officer Kelly, who was the recipient of that and was in the best position to understand as to what was going on, testified that he did not believe that this was an attempt to dissuade him from doing the evaluation. (T - 215, 216, 218) Rather, it was an issue involving frustration of the normal course of the job, and it was something that many officers have done. (T - 216) preserved. 5 It certainly appears that there is more to this chain which has not been presented or 10

11 As the hearing officer will also recall, Officer Plummer is someone who takes issues involving inmate health and safety extremely seriously. As noted in Exhibit 11, she was particularly concerned with regard to an inmate who appeared to be having some sort of medical condition. She actively reported that up the chain of command. (Exhibit 11) On another occasion testified to at the hearing, CO Plummer made a specific notation in the record with regard to an inmate not being provided a shower when she felt that the inmate was entitled to and in need of a shower. (T - 89) While a strong argument could be made that Kathy Plummer makes inappropriate comments, I do not believe that even Warren County is taking the position that she is not a caring corrections officer. Indeed, their comments noted in the hour long interview by Lt. LaFarr to the effect that she may well be too caring with regard to the inmates. (Exhibit 6). VI. OCTOBER 11, 2011 INCIDENT - DISCREDIT TO AGENCY Finally, Kathy Plummer is charged with regard to an incident on October 11, At that time an officer from the Fort Edward Police Department had responded to her home to issue an apology with regard to his conduct involving the Plummer children. While in the home, it is alleged that he represented to Kathy and her husband that he was planning on coming to work for her employer. Kathy Plummer is alleged to have responded that he should think twice about working in Warren County; that the Sheriff had been sued; and that the Sheriff gets away with things he should not. 6 (T - 135; 136) Kathy Plummer acknowledged in her interview that she did in fact indicate to Officer Fish that he should think twice about working at the County. (Exhibit 9) She also may have made reference to a lawsuit which involved the 6 It is unclear from the record that the reference to the sheriff is to the former sheriff (who was sued) or the present sheriff (who was not) 11

12 previous sheriff, which is a matter of public record. That lawsuit is Michelle A. LeBarron and Cynthia L. Vandenburgh v. Warren County Sheriff's Department, et. al., and can be found in the Federal Docket through the ECS system. The case involved a claim of discrimination against the Warren County Sheriff's Department. That discrimination was gender discrimination, however, and not sexual discrimination. The matter was ultimately settled. At issue in this grievance are statements made in a private setting with regard to litigation that is a matter of public record and also matters of public importance. It is respectfully submitted that the charges arising out of this incident should be dismissed as the conduct does not violate the Sheriff's Department regulations and, in addition, the statements are protected by the First Amendment. Regulation 29, involving conduct of members, states in pertinent part that a "member shall not publicly express any derogatory statement, criticizing the agency or any official action of any member." (Emphasis added). The County of Warren has taken the position in this case that the statements of Officer Plummer to Officer Fish violate this provision, or alternatively, constitute conduct which discredits the Sheriff's Department. See, Regulation 29: Conduct of Members, 22. The very language of 15 creates a distinction between public criticism and private criticism. What could be more private than conversations in one's own house? The public dissemination provision was clearly meant to prohibit calls to the radio talk shows or letters to the editor, that involve discussion that relates to the agency. With all due respect to Lt. LaFarr, a reading of this provision to prohibit all criticism of the agency, even in one's home, or to one's spouse, is inconsistent with the language of the regulation, and would certainly violate the Constitution of both the United States and New York. With regard to the First Amendment rights of county employees, a relevant summary is as follows: 12

13 It has been held that by accepting public employment, one does not forego the right to freedom of speech; that a public employee may speak freely, as long as the employee does not impair the administration of the public service in which he or she is engaged; and that a public employee does not forfeit the First Amendment protection against governmental abridgment of freedom of speech, simply because the employee decides to express views privately, rather than publicly. Also, it is said that the constitutional right of free speech extends to statements by public officials on matters of public concern, which must be accorded First Amendment protection, despite the fact that the statements are directed at nominal superiors; and that a candidate for public office, no less than any other person, has a First Amendment right to engage in the discussion of public issues A.L.R. Fed. 9 First Amendment protection for law enforcement employees subjected to discharge, transfer, or discipline because of speech, 1 In the present case, there is little question that comments regarding gender discrimination and what Officer Plummer believed to be systemic problems with the jail are matters of public concern, and are thus entitled to constitutional protection. See, Rankin v. McPherson, 483 U.S. 378 (1987). Second the statements were made by Officer Plummer as a citizen, and not as part of her job duties. See, Garcetti v. Caballos, 547 U.S. 410 (2006). Finally, while the courts and arbitrators utilize a balancing test to determine the employer's interest regarding disruption, Pickering v. Board of Education, 391 U.S (1968), no evidence was presented at this hearing of any disruption. Indeed, Officer Fish, who was the recipient of the comments, decided to come to work for the County, and is presently employed there. Thus, the issue in this case relates solely to what was said, not its actual effect on the organization. Rankin, 487 U.S (vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse not because it hampers public functions but simply because superiors disagree with the content of employees' speech). Therefore, as Kathy Plummer's speech was constitutionally protected, all charges arising from that speech should be dismissed. 13

14 CONCLUSION For the foregoing reasons it is respectfully requested that the disciplinary charges against Kathy Plummer be dismissed. If the Hearing Officer determines that any of the charges are warranted, it is requested that any penalty that is imposed not exceed 30 days. Dated: December 21, 2011 DANIEL J. STEWART BRENNAN & WHITE, LLP Attorneys for Employee Kathleen Plummer 163 Haviland Road Queensbury, NY

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