By Joe Rogalsky,
Delaware State News
DOVER - The union representing the state's correctional officers submitted two complaints to the state Public Employment Relations Board on Wednesday, charging the Department of Correction with improperly using mandatory overtime shifts and illegally regulating sick leave.
John F. Brady, the attorney for the Correctional Officers Association of Delaware, said he faxed the complaint to the board on Wednesday and also mailed copies to the board and the state personnel office.
The complaint, which Mr. Brady authored, asks the board to order the Department of Correction to stop the practices in question.
The first point of contention centers on how officers can be held over, or frozen, for a mandatory second eight-hour shift after their regular shift has ended.
The complaint says the state is not following guidelines of an agreement that has governed agency-officer relations while the two sides try to negotiate a long-term labor contract.
"Corrections wardens are requiring supervisors to freeze COAD member officers over for additional mandatory overtime without following the procedures in the interim operating agreement and by refusing to allow frozen personnel the opportunity to swap the freeze with personnel who wish to voluntarily work the shift," the complaint says.
The second contention hinges on wardens requiring explicit medical explanations when officers call out sick, which Mr. Brady said violates federal privacy law.
"Wardens are refusing signed doctors' excuse-from-work documents and are requesting detailed notes from medical practitioners with specific patient medical conditions and information from COAD members," the complaint says.
That information, the complaint says, is not required under the interim contract and violates patient privacy under HIPAA, the federal Health Insurance Portability and Accountability Act, which became effective April 2003.
In a prepared statement, Commissioner of Correction Stanley W. Taylor denied any wrongdoing and pledged to defend his agency.
"We have not had the chance to review the complaint," he said.
"Once we have had an opportunity to do so, we will be drafting our response.
"We believe our actions have been in compliance with the contractual language of the interim agreement and we look forward to presenting our case before the Public Employment Relations Board."
Charles Long, executive director of the board, said the state has seven days to respond once the official copies of the complaint arrive via mail, which he expected to happen by Friday.
The complaint alleges that the mandatory overtime policy started at the Delaware Correctional Center near Smyrna and has spread to other facilities. By not allowing officers to swap mandatory overtime shifts, COAD argues, the state puts the officers' dependents at risk and exposes the officers to legal problems.
"The result of this new procedure is causing COAD members who have small children or elderly relatives to not be able to care for them, subjecting them to criminal charges for endangering the welfare of a child or elder abuse," the complaint says.
"Several COAD member officers have declined overtime and found someone else to work the overtime only to be told that that is no longer permitted and they will be suspended or fired if they leave to take care of their children."
In COAD's filing, Mr. Brady included an e-mail, which he said Sussex Community Correction Center Warden Robert George sent, that outlines the policy regarding sick leave. DOC spokeswoman Elizabeth Welch said she could not confirm the e-mail's authenticity Wednesday afternoon. It is included in documents that Mr. Brady has legally sworn are accurate.
The e-mail tells supervisors not to worry about HIPAA. It also tells supervisors that officers who call out sick should be home or in the doctor's office.
If an officers calls in sick and leaves a voicemail message for a supervisor, the supervisor is to call the officer back to inform the officer he or she needs the detailed doctor's note.
The supervisor must keep a record of the call and whether the officer is home or not and how many times the supervisor calls until he or she reaches the officer.
A supervisor failing to follow these procedures is subject to disciplinary action, according to the e-mail.
"When an employee calls off sick they are to be directed to bring a doctor's excuse which clearly indicates why they cannot physically perform their duties as an employee of this facility," Mr. George's e-mail said.
"Employees will not be granted sick leave in the absence of the exact reason why they cannot perform their duties as employees of this department. Any note that has just (HIPAA) noted on it will not be accepted."
The complaint also charges the department relies too heavily on mandatory overtime shifts to staff facilities. Instead of freezing officers for a second eight-hour shift in emergency situations, the complaint says, prison officials order the extra shifts because they cannot hire enough officers to keep staffing at sufficient levels.
"The intent of freezing is to cover staffing levels during emergency shortages - and not to supplement the department's shortfalls in manning the facilities," the complaint says.
Officers have long been fed up with low staffing levels and pay issues, but their frustrations reached new heights after a July 12 incident at the Delaware Correctional Center, where a prison counselor was held hostage and raped.
The nearly seven-hour ordeal ended when a correction officer shot and killed the inmate.
To show displeasure with the department's hiring woes, officers refused voluntarily overtime shifts for six weeks, which caused delays in the court system because some prisoners could not be transported from prisons to the courthouses.
Mrs. Welch said no transports have been canceled since officers resumed voluntary overtime shifts earlier this month.
The state and COAD are meeting to develop ways to improve recruiting new officers and retaining those already on staff. A report is due to be submitted to the General Assembly by Nov. 15.
To immediately address staffing shortages, Gov. Minner authorized a 5 percent raise for officers effective Jan 1. A recruitment incentive program, which gives as much as $500 to a new recruit and to the officer that did the recruiting, went into effect Sept. 1.
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Staff writer Joe Rogalsky can be reached at 741-8226 or jrogalsky@newszap.com.
