@NCCapitol

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Lawsuit: Prisons used 'sham' discipline to avoid raising guard pay

Posted June 25, 2018 6:32 p.m. EDT
Updated June 25, 2018 9:55 p.m. EDT

— Two correctional officers are suing the state Department of Public Safety, alleging the agency is using "sham" disciplinary warnings to avoid awarding raises to them in a move to cut costs.

State lawmakers in recent years have initiated across-the-board salary increases for prison staff in an effort to combat stagnant pay and persistent turnover and vacancies. But plaintiffs in the suit, filed in Wake County Superior Court Monday, say DPS leaders directed command staff to write up as many employees as possible before the raises went into effect and enforced a new policy that would render workers facing disciplinary action ineligible for pay increases.

The suit says written warnings issued by the agency more than doubled from 2013 to 2016. The increase in warnings, however, did not prompt a similar spike in demotions, suspensions or dismissals, according to Michael Byrne, a Raleigh-based personnel attorney representing the correctional officers in the case.

"At the end of the day, this was an effort to save money," Byrne said.

In a statement Monday afternoon, DPS spokesman Jerry Higgins said the agency had not yet reviewed the lawsuit and was unable to comment on it. But he said making sure prison staff are "compensated appropriately for the difficult job they perform every day to keep North Carolinians safe" is an ongoing priority.

Two correctional officers, Carla Elkins and Michael Jackson, allege in the suit that DPS issued the "sham written warnings" without just cause and timed them specifically to delay pay increases.

Nearly a year after an incident at Central Prison in which her sergeant criticized her job performance, Elkins said she received an official write-up in August 2016. The warning came right as a round of raises was supposed to go into effect.

"It seems incredibly unfair," Elkins said before a Monday press conference about the lawsuit called by the North Carolina Police Benevolent Association. "You can't dispute it. You can't fight it."

She said the practice to deny raises is one widely discussed among correctional officers across the state.

"The morale is just in the trash," Elkins said. "No one trusts the department."

State lawmakers have already taken steps to address questions around raise eligibility for DPS workers. The 2018 budget included language specifying that no DPS employee could be denied a raise based on a pending or prior written warning unless it was "an active disciplinary action related to grossly inefficient job performance." A budget technical correction added that disciplinary action could affect a raise only if it resulted in 10 or more days of unpaid suspension.

That legislative language should apply retroactively to the plaintiffs and other prison personnel who were denied raises, the lawsuit says.

"The problems are so systemic we felt we had to do something more to try to stop this from happening," PBA Executive Director John Midgette said.

Rep. Bob Steinburg, R-Chowan, who attended Monday's press conference at the invitation of the state, said he's talked to correctional officers across the state who have shared similar stories of being denied raises enacted by the General Assembly, and he's concerned the tactic has forced out qualified and much-needed prison staff.

"This was, I believe, a wedge they used to try to initially punish or, ultimately, drive them out," Steinburg said, adding that he believes the legal action is "more than justified."

In addition to making correctional officers ineligible for higher salaries, the lawsuit says the written warnings prevented correctional officers from transferring between facilities – and, particularly, away from those the suit terms "undesirable prisons."

"These are facilities which are or perceived to be particularly understaffed, underequipped, dangerous or otherwise undesirable, and correctional officers were frequently attempting to transfer out of the Undesirable Prisons to more desirable prison facilities," the lawsuit says. "DPS employed, Plaintiffs allege, the Transfer Prohibition Policy to in effect indenture its employees at Undesirable Prisons which, due to their poor working conditions and DPS' poor management, were difficult to staff."

Correctional officers in the suit are seeking retroactive pay, an additional $50,000 judgment and an end to what they say is an unconstitutional policy. Byrne said he expects more staffers will join the suit as it moves forward.

For now, Elkins said, some prison employees may fear retaliation for publicly challenging the agency.

"I feel like it's worth speaking up for," Elkins said. "You never get anywhere if you keep quiet."