OAR 291-105-0021: Procedures for Handling Misconduct by AICs

(1) Corrective Action: Employees shall be expected to use less formal procedures if the act or acts of misconduct do not constitute an immediate and continued threat to life, health, facility security, employee authority, or serious property damage or destruction, and in a manner that promotes and embraces the Oregon Accountability Model. Less formal corrective action may include: a reprimand, a warning, counseling, a conduct order, or as otherwise authorized by the functional unit manager, Officer-in-Charge, or designee. (a) Employees issuing a conduct order shall promptly complete the conduct order and forward it to the Officer-in-Charge or designee for review. (b) The Officer-in-Charge or designee shall review and approve, cancel, or modify the conduct order as soon as practicable or within four hours of it being issued. If the Officer-in-Charge or designee determines that the incident warrants a misconduct report rather than a conduct order, the Officer-in-Charge or designee will ensure the conduct order is cancelled and a misconduct report submitted. If the Officer-in-Charge or designee determines a conduct order is necessary to immediately address safety and security concerns, and a misconduct report is warranted, the misconduct report shall reflect the reason(s) for issuing both a conduct order and a misconduct report. (c) The AIC shall be notified a conduct order is being issued as soon as practicable. A copy of the conduct order shall be delivered to the AIC as soon as practicable or within four hours of it being approved, cancelled, or modified. (2) Misconduct Reports: (a) When the behavior justifies submission of a misconduct report, the employee shall legibly print, sign, and file a misconduct report with an immediate supervisor or the Officer ‑ in ‑ Charge, no later than 24 hours after sufficient evidence or information is gathered, discovered, or observed to support a rule violation. Determination of the sufficiency of evidence shall be a matter of judgment for the employee submitting the report and the immediate supervisor reviewing the report. The misconduct report will reflect the reason(s) for delay of submission if submitted after the 24-hour period. (b) The reviewing supervisor will ensure the report is accurate, appropriate, and supported by sufficient information. If not supported or appropriate, the reviewing supervisor will refer the report back to the author for additional investigation or for less formal action. The report will have a printed, legible name and signature of the author and reviewing supervisor. The reviewing supervisor or designee shall be responsible for providing the AIC with a legible copy of the misconduct report, Rules of Misconduct (291-105-0015), and the Notice of Hearing and Rights within 24 hours of the filing of the report, unless the AIC is unavailable to be served. If the report is not served to the AIC within 24 hours, the reviewing supervisor or designee shall notify the Hearings Unit of the reason for delay, which will be made part of the record. (c) The AIC will be allowed 24 hours, after being served the misconduct report, before a hearing is conducted to prepare a defense unless the AIC waives this right. (d) The misconduct report shall be submitted to the Hearings Unit on an approved Department of Corrections form and shall be as specific and comprehensive as possible. Upon receipt of the misconduct report, the Hearings Unit shall note the date received on the form. (A) The misconduct report shall include a description of any unusual or relevant AIC behavior and information regarding how the employee became aware of the behavior. The report shall identify all discovered information related to the incident (including video, memos, etc.). The misconduct report must contain sufficient and complete facts to support the alleged rule violation(s), including a description of what the restitution is for and the amount of restitution to be ordered, if applicable. The misconduct report must contain sufficient information to allow the AIC to prepare a defense. (B) Attempt or Conspiracy: If an AIC attempts to commit or enters into a conspiracy to commit an act of prohibited conduct, it shall be considered the same as if the AIC had completed or accomplished the prohibited act. (e) The misconduct report must specifically allege all the rule violations the AIC is alleged to have violated and demonstrate conduct constituting an attempt or conspiracy. (f) Reports from all employee and non-employee service provider witnesses shall also be submitted. (g) When the alleged misconduct occurs while the AIC is in the temporary physical custody of a jurisdiction other than the Department of Corrections, employees from that jurisdiction may provide a written description of the misconduct to the Officer-in-Charge: (A) On review of such written information, the Officer-in-Charge at the facility receiving the AIC back into the physical custody of the department may determine that the described action violates a rule or rules of prohibited conduct and direct that an employee submit a conduct order, misconduct report, or both. (B) The written description provided by the temporary custody jurisdiction shall accompany the misconduct report. A misconduct report shall not be submitted absent a written description of the allegation from the temporary physical custody jurisdiction. (C) If it is determined that the other jurisdiction maintained the AIC in a similarly restrictive status, the AIC shall receive credit for the number of days held in segregation-type status by the other jurisdiction. (3) Placement on Disciplinary Segregation Status: An AIC charged with committing a rule violation may be placed on disciplinary segregation status pending resolution of the charge through a formal hearing. This action will be taken when the functional unit manager or designee or the Officer ‑ in-Charge determines that the alleged rule violation(s) are of such seriousness that the safety and security of a facility is at risk and requires immediate removal of the AIC from the general population or determines that the AIC is a threat to the community, or determines that the AIC is likely to escape or abscond. (a) If disciplinary segregation status is ordered, the Officer ‑ in ‑ Charge must document specifying the reason(s) why immediate disciplinary segregation of the AIC was deemed necessary. (b) A completed copy of the Department of Corrections misconduct report will be forwarded to the functional unit manager or designee who will review the AIC’s pre ‑ hearing disciplinary segregation placement within 72 hours of the AIC ’ s placement on disciplinary segregation status. If approved, the functional unit manager or designee will initial the report. If the AIC is temporarily confined in a local jail while on Short ‑ Term Transitional Leave, Non-Prison Leave, or Emergency Leave, the functional unit manager or designee will be notified for review of the AIC’s status, within 72 hours of the AIC’s confinement or as soon as practicable after the AIC’s confinement. (4) Scheduling a Hearing: (a) An AIC charged with a rule violation through a misconduct report shall be scheduled for a hearing as soon as practicable. (b) If the AIC is transferred to another facility before the hearing is complete, the misconduct report shall be forwarded to the other facility for processing. (5) Initiating a Hearing: A hearing will be considered initiated when the misconduct report has been received by the Hearings Unit, numbered, and scheduled. (a) A hearing shall be initiated and conducted within 10 calendar days if the AIC is placed on disciplinary segregation status pending a formal hearing. For significant delays, the reasons for the delay shall be made part of the hearing record. (b) All other hearings shall be initiated and conducted as soon as practicable. For significant delays, reasons for longer timeframes shall be made part of the hearing record. (c) When an AIC charged with violating any level I rule, Escape II, Short-Term Transitional Leave, or Non-Prison Leave is released from custody prior to a hearing being held, a hearing will be initiated as soon as practicable upon return to DOC custody. (d) The hearing may be postponed or continued for a reasonable period for good cause as provided in OAR 291 ‑ 105 ‑ 0064. The reason(s) for the postponement or continuance shall be made part of the record.