FPSLREB Decisions

File: 166-2-27989 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN PHILIP JOHN DAIGLE Grievor and TREASURY BOARD (Solicitor General Canada - Correctional Service)

Employer

Before: P. Chodos, Vice-Chairperson For the Grievor: Derek Dagger, Counsel, Public Service Alliance of Canada For the Employer: Roger Hornby, Counsel Heard at Vancouver, British Columbia, January 28 and 29, 1998.

Decision Page 1 DECISION Mr. Daigle is a Correctional Officer employed at Mission Institution. His grievance concerns the imposition of a financial penalty equivalent to two day’s pay which was imposed as a disciplinary measure.

The events giving rise to the disciplinary action occurred on October 17, 1996. On that day, two Sheriff's Officers arrived at the Institution for the purpose of escorting an inmate named Wilson for a court appearance at Kitimat, British Columbia. Before an inmate can be released into the custody of Sheriff's Officers, a document known as a Removal Warrant issued by the Court must be provided to the Institution. According to Correctional Supervisor Surge Cumiskey, normally a warrant is sent to the Sentence Management office at the Institution in advance of the arrival of the Sheriff's Officers; Sentence Management staff would then forward the warrant to the officer responsible for escort control who is located in an area known as Central Control or the Principal Entrance. However, in this instance, the Sheriff's Officers arrived at the Institution without prior notice, for the purposes of escorting inmate Wilson to court.

On that day Mr. Daigle was assigned as the Officer in Charge of the Principal Entrance. In that capacity, Mr. Daigle has a number of responsibilities (see Exhibit G-1, Chapter 4 of the Post Orders, entitled Correctional Officer in Charge of Central Control) including supervising the movement of persons into and out of the Institution through the main gate; one of the procedures which has been established for monitoring inmate movement is the issuance of gate passes. The gate passes (ref. Exhibit E-7) are signed firstly by the Correctional Supervisor on duty at the time and then subsequently by the Officer in Charge of the Principal Entrance; prior to issuing the gate pass this officer ensures that all documentation is in order, including verifying that the Institution has been provided with the proper removal warrant. It is not in dispute that when the Sheriff's Officers removed inmate Wilson from the Institution, Mr. Daigle issued the gate pass and allowed them to leave the Institution without having determined that the removal warrant had been provided to the Institution. In fact, the Sheriff's Officers had not left the removal warrant at the Institution; the following day the managers of the Institution discovered that they did not have the warrant which would account for inmate Wilson’s departure from the Institution.

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Decision Page 2 Following this discovery, Ms. Cumiskey was directed to conduct a disciplinary investigation into the circumstances surrounding this incident. Mr. Daigle was advised in writing of this investigation, as was Mr. Robert Marshall, the Correctional Officer who was assigned to the Escort Control Desk on October 17th. At the request of Ms. Cumiskey, both Mr. Daigle and Mr. Marshall provided written statements concerning the events in question; in addition, Ms. Cumiskey interviewed both officers. These statements (Exhibits E-5 and E-6) are reproduced in full below (it should be noted that Mr. Marshall’s statement was submitted on consent and in the absence of Mr. Marshall’s testimony, as he died prior to this hearing): P. Daigle 96-10-19 Correctional Officer

Re: An incident where it is alleged that I released an inmate without proper authority.

On Thursday October 17, I was working as the I/C PE. I was not covering the Escort Control Desk at the time. There was another officer manning that post. It is alleged that an inmate was released to the B.C. Sheriff Service without documents. On the day in question, I recall 2 B.C. Sherriffs Officers coming into the institution. They had come to transport an inmate to Williams Lake for court. I recognized one of them personally because I have seen him in his capacity as a Sheriff before. There was some confusion as to whether the inmate, they were here to get, was even in our institution. There were also other activities going on at the same time. During the commotion of activities, I checked on the computer to see if the inmate in question was in Mission Institution. He was, so I paged him up to A&D. At some point during all the activity, I had the opportunity to ask one of the Sheriffs if he knew the inmate’s FPS number. He looked at a clipboard, he was carrying, and replied that he did not. At that point I assumed he had a proper document for us to release the inmate to him. I further assumed that he would automatically give the document to my partner before he left with the inmate. After all, I had been through the routine with him in the past.

After the inmate had been loaded into the Sheriff’s van and they were pulling away from the institution, my partner mentioned that he did not see a warrant for the inmate going to court. I, unfortunately, was the one who let the sheriffs go. If I had known ahead, I would most certainly not have let them out of the institution without a warrant.

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Decision Page 3 Bob Marshall CO-II October 23, 1996 I was on duty on 96.10.17 as Escort Control Office in Central Control. At about 12 noon I was asked by the Correctional Supervisor (which was you) to find an escort to escort inmate D. Fisher 453638C to RHC (Pacific). I left Central Control and began to try and find staff for this escort. I succeeded, Murray Stewart CO-II and Joe Crumley CO-1 agreed to escort i/m Fisher. I returned to Central Control to find that the Sherif’s department was present. I was informed by Phil Daigle i/c PE that they were here to escort i/m Wilson 978228C to Kitimat for a court appearance, this was around 12:20/12:25 pm, or so, I was told that the i/m had been paged to report to A&D for this escort. After a few minutes this inmate had not appeared. I went looking for him, I checked the dining, room, then his cell in Douglas Manor, then I went to the A-27 corridor Area, also checking the gym. I could not find him. I returned to Central Control and as I passed the holding cell at A&D, I saw i/m Wilson outside. Just then one of the sheriffs arrived at the cell and commenced to prepare the inmate for escort. I returned to my desk area, Phil Daigle was with the other sherrif and was asking him to sign the gate pass and a body receipt. After the sherrif’s left with Wilson, I saw the gate pass and body receipt on the desk, I asked Phil Daigle as to where the court order was, he said “I don’t have it, thought you had it”. At no time did I see the Court Order as I was not directly in contact with the sherrifs. Almost immediately after the sherrifs left the second escort left for RHC, and then other inmates were admitted. We then had an early count at 13:45 followed by a recount which was finally completed about 14:35. I completely forgot about the Wilson incident as I was relieved shortly afterwards. The next day, I was going to contact Sentence Administration and explain what had happened, I phoned Sentence Admin about 09:15 on Friday October 18th, and spoke to the staff member and explained what had happened. She said she would contact the Sherrif’s department. I then mentioned that perhaps Matsqui Institution may have the court order as he (Wilson) had only been at Mission for 6 days. After being relieved at 0950 from A-27 duties, I spoke to Jan Robertson and I was informed that a fax had come in from Matsqui regarding the court appearance for i/m Wilson.

To the best of my knowledge the facts written above are correct.

Following the completion of her investigation Ms. Cumiskey prepared a report (Exhibit E-10) in which she reached the following conclusions: ... Public Service Staff Relations Board

Decision Page 4 I have reviewed both written statements, and based on the post orders, and the interviews I had, I found that Mr. Daigle is responsible for allowing the inmate out of the institution. Mr. Marshall had no dealings with the sherrifs whatsoever, he was out of the area, in any event even if he was not out of the area, the i/c PE is the 2nd. i/c of the institution and he/she is to ensure that all documentation is present prior to an inmate leaving. I have recommended a 2 day pay loss to the unit manager for this very serious security breach.

In her testimony Ms. Cumiskey elaborated on why she concluded that Mr. Daigle bore sole responsibility for the events of October 17 and should be disciplined for his conduct on that day. Ms. Cumiskey noted that Mr. Daigle had assumed that the Sheriff's Officer had the removal warrant; however, one of the basic functions of the Officer in Charge of the Principal Entrance is to see the warrant before letting the inmate go. She also noted that Mr. Daigle could have prevented the Sheriff's Officers from leaving the property when he realized that Mr. Marshall had not seen the warrant. Mr. Daigle could have notified the Mobile Patrol by radio to stop the Sheriffs’ vehicle on the access road leaving from the Institution to the public highway. The Mobile Control Officer then could have directed the Sheriff’s Officer to return to the Institution; also, he could have phoned the Sheriff's Officers directly in their vehicle. Ms. Cumiskey also observed that Mr. Daigle had an obligation to report such an incident to his superiors; however, he did not do so prior to her request to him to prepare a report.

Ms. Cumiskey stated that following her interview with Mr. Marshall she concluded that he was not in the Central Control area, as he was sent by Mr. Daigle to look for inmate Wilson when the Sheriffs arrived to escort him out of the Institution; Mr. Marshall only returned to the Principal Entrance area just as the Sheriffs were leaving, and therefore he was not in a position to ask the Sheriffs for the warrant. Ms. Cumiskey also noted that, when the Escort Control Officer is away from the Central Control area, the Officer in Charge of the Principal Entrance is responsible for assuming his duties, and vice versa. According to Ms. Cumiskey, Mr. Daigle was in fact dealing with the Sheriff's Officers, was aware that Mr. Marshall was not in the area and therefore had the responsibility for obtaining the warrant and verifying its contents prior to issuing the gate pass.

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Decision Page 5 Ms. Cumiskey testified that she took into account both the seriousness of the incident which, in effect, resulted in an inmate being out of their custody illegally for a period of twenty four hours; as well as the principle of progressive discipline; she noted that a couple of months earlier Mr. Daigle had received an oral reprimand for an incident involving the issuance of a wrong permit in respect of an unescorted temporary absence. She had also counselled Mr. Daigle about certain incidents which she viewed as demonstrating a lack of due diligence on his part. In the course of her testimony Ms. Cumiskey referred to a document she had prepared for herself which apparently outlined the occasions when she had verbally reprimanded Mr. Daigle. This document was not submitted in evidence; however, counsel for the grievor objected to Ms. Cumiskey testifying about these matters; Mr. Dagger submitted that the employer was attempting to put in evidence matters which were not properly placed on the grievor’s file, as required by the collective agreement. The questions were allowed, notwithstanding Mr. Dagger’s objection. In my view, the witness was entitled to testify about prior oral reprimands, and this testimony was not tainted by the fact that she had personal notes concerning the occasions on which she had counselled the grievor about his job performance. There is no suggestion that these notes were used for any purpose other than as a “memory jogger” for Ms. Cumiskey.

In cross-examination, Ms. Cumiskey acknowledged that, as the Escort Control Officer, Mr. Marshall had responsibility to obtain the necessary paper work for release of the inmate to the Sheriffs (see Exhibit G-2, the Post Orders - Chapter 29, entitled Internal Escort Control). Ms. Cumiskey maintained that Mr. Marshall was not in the Central Control area and accordingly Mr. Daigle assumed responsibility of the Escort Control Officer. She noted that the A&D area (i.e. Admission & Discharge) is at the back of the Institution and far from the Principal Entrance. She acknowledged that Mr. Marshall did not contact the Mobile Patrol or radio the Sheriffs, nor did he go to the Sentence Management office that day to advise them of what had happened.

As the Unit Manager in charge of the green sector, Mr. Donald Howard had the ultimate responsibility for determining the discipline imposed on Mr. Daigle. He noted that prior to making a final determination as to the appropriate discipline, he attempted to meet with Mr. Daigle and his union representative for the purpose of hearing Mr. Daigle’s version of the events. At this meeting, which occurred on

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Decision Page 6 November 18, 1996, Mr. Daigle maintained that Mr. Howard had no right to conduct a meeting without a convening order; he then left.

Mr. Howard stated that he took into account the seriousness of the event as well as the fact that Mr. Daigle had received a number of counselling sessions concerning oversights and errors respecting his job performance, none of which appeared to be effective. He noted that Mr. Daigle showed no remorse, was argumentative, and would contest every effort which his supervisors made to correct his behaviour. Mr. Howard felt that a penalty equivalent to a two-day suspension was part of a progressive step in the disciplinary process which might get Mr. Daigle’s attention. Mr. Howard also stated that he was aware that Mr. Marshall also had some involvement in the incident, but not of the same order as Mr. Daigle; he noted that Mr. Marshall was very conscientious and was always responsive to any mistakes that he might make.

Mr. Daigle testified on his own behalf. He recalled that he was the Officer in Charge of the Principal Entrance on that day and that Mr. Marshall was the Escort Control Officer. He noted that when Mr. Marshall was doing tasks elsewhere, he would “fill in for him”. Mr. Daigle referred at length to the duties of the Escort Control Officer as outlined in Exhibit G-2. He noted in particular that per subparagraph 5. (f) (v) the Escort Control Officer is responsible for “filling out Gate Passes” which are signed by both the Correctional Supervisor and the Officer in Charge of the Principal Entrance. The Escort Control Officer is also responsible for maintaining a tally of inmates. Mr. Daigle maintained that all discrepancies in inmate counts are to be reported by the Escort Control Officer; it was his view that there was such a discrepancy arising out of the events of October 17th. Mr. Daigle also referred to paragraph 12 of Exhibit G-2 which provides that “The Correctional Officer shall ensure that no inmate passes through the main gate unless written authorization is present.” The grievor stated that he was “shocked” that Mr. Marshall did not have in his possession a warrant on October 17th; he did not know what to do in response to these circumstances. He felt that his "world was coming to an end". Mr. Daigle observed that pursuant to paragraph 22 of Exhibit G-1 he had the responsibility to ensure that there was proper written authorization for allowing an inmate through the main gate.

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Decision Page 7 Mr. Daigle related the circumstances leading up to the critical events on October 17th. Two Sheriff's Officers first appeared in a van, and came into the building where he and Mr. Marshall were posted. One of the Sheriff's Officers indicated who they had come for; Mr. Marshall replied that they (i.e. the Correctional Officers) did not have a warrant for this inmate. Mr. Marshall then left to do something else; the Sheriff's Officers started complaining about having to wait; Mr. Daigle stated that he decided to help; he walked over to the computer at the Escort Control Desk; he went behind the Sheriff’s Officer as he was reading the warrant and observed that it was a British Columbia warrant. He then asked the Sheriff's Officer the name of the inmate. The Sheriff’s Officer then read off the full name from a clip board which he was holding and Mr. Daigle typed in his name. According to Mr. Daigle, Mr. Marshall returned to the Central Control area, at which time Mr. Daigle sent him to look for inmate Wilson. He also phoned the living unit where inmate Wilson was residing and asked them to send the inmate to the A&D area. Some time later, they got word that the inmate had arrived at the A&D area, and both Sheriff's Officers went to that location. He then saw the two Sheriff's Officers escorting the inmate who was shackled; Mr. Marshall was a few feet behind them. Mr. Marshall did not return to the Central Control area at that time.

Mr. Daigle then let the Sheriff's Officers out through the Sally Port; as the door was closing Mr. Marshall came into the Central Control area, walked about fifty feet in the area and then said: “You let them go without a warrant.” According to Mr. Daigle he replied: “You didn’t get it from them?” Mr. Daigle observed again that he was “shocked”. He realized that not having a warrant was a very serious matter. Mr. Marshall said that he would speak with Correctional Supervisor McNeill about the matter. Mr. Daigle stated that he was relieved that Mr. McNeill would be advised as he was an experienced Correctional Officer and would know what to do about this circumstance. Mr. Daigle stated nothing else happened, and he never heard from Mr. McNeill.

Mr. Daigle testified that he had worried about this incident for several days afterwards; however, he was “comfortable” that he had seen the warrant, although “he felt somewhat badly” that he had not asked for it. He had assumed that Mr. Marshall had obtained the warrant from the Sheriff's Officers as he was “back with them in the A&D area, as far as I knew.” Public Service Staff Relations Board

Decision Page 8 A couple of days later Mr. Daigle was asked to prepare the report (Exhibit E-5). He “wrote it in a hurry, and was still bothered by the incident”. He was also troubled by other recent incidents at the Institution. He had failed to refer in the report to his having seen the warrant. He had assumed that the Sheriff's Officers would give the warrant which he had seen to Mr. Marshall before they left with the inmate. That is, he “assumed the Sheriff's Officers would know he had to do that.” Mr. Daigle maintained that he was never afforded an opportunity to tell management about having seen the warrant. When he met with Mr. Howard, he was given the disciplinary report (Exhibit E-13); upon reading it, he decided that he did not want anything more to do with the meeting, as he felt that the question of discipline against him was a fait accompli. Although Mr. Howard did tell him that they wanted to hear his side of the story, he felt that they really were not interested.

In cross-examination Mr. Daigle stated that he would not necessarily assume the duties of Mr. Marshall when he is not there; he did help out the Sheriff's Officers by trying to find out where the inmate was. He acknowledged that he did not see the inmate’s name on the warrant but did observe the Sheriff’s Officer reading the name from the warrant. When Mr. Marshall went to find the inmate, Mr. Daigle did not know where he had gone. He agreed that in his own report he did not make reference to Mr. Marshall undertaking to see the Correctional Supervisor. He also acknowledged that he did not note in the log book that inmate Wilson had left without a warrant, notwithstanding that it was his responsibility to maintain the log book on that occasion; he also agreed that it was a very serious thing to have an inmate leave without a warrant. He maintained that documentation is part of the duties of the Escort Control Post Officer. He stated that he did not have a meeting with Ms. Cumiskey concerning this particular incident.

Argument Counsel for the employer noted that the grievor had acknowledged the seriousness of the incident in question; however, he had taken no steps to correct the situation, and he continues to deny any responsibility, but rather blames a deceased person, Mr. Marshall, for the incident.

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Decision Page 9 Mr. Hornby submitted that the evidence is clear that Mr. Daigle signed the gate pass, thereby allowing an inmate to leave the prison without proper authorization, on the basis of a series of assumptions which a conscientious Correctional Officer would not have made: firstly, he assumed that the Sheriff's Officers had a warrant, although he never requested to see it; he then assumed that Mr. Marshall had processed the documents, and he assumed that Mr. Marshall would do the paper work; however, from the testimony of Ms. Cumiskey, Mr. Daigle himself and the statement of Mr. Marshall it is apparent that Mr. Marshall was not around to do that paper work. Mr. Daigle then assumed that Mr. Marshall was out back with the Sheriff's Officers, although in cross-examination he did not know where Mr. Marshall was. Finally, Mr. Daigle assumed that Mr. Marshall had spoken to Mr. McNeill, the Correctional Supervisor, and that Mr. McNeill would do something.

Counsel for the employer maintained the grievor admitted that he took no steps himself to deal with the situation; he failed to enter the incident into the log book, which is his responsibility, he failed to contact the supervisors, and he failed to take steps to have the Sheriff's Officers return to the Central Control area. As the Officer in Charge of the Principal Entrance, Mr. Daigle had overall responsibility for supervising the movement of inmates out of the Institution by signing the gate pass; by letting the prisoner leave the Institution he assumed any responsibility which Mr. Marshall might have had, had he been there to exercise it. Mr. Hornby also questioned Mr. Daigle’s credibility; he noted that it was only during this testimony that Mr. Daigle stated that he actually saw the warrant; he never so advised either Ms. Cumiskey or Mr. Howard, or indicated in his report that he had done so. Furthermore, Mr. Daigle stated that he had no opportunity to present his case, when the evidence demonstrates that in fact he was given such an opportunity but refused to participate in the process.