Lawriter - OAC - 5120-9-08.1 Disciplinary procedures for violations of inmate rules of conduct before the serious misconduct panel.

5120-9-08.1 Disciplinary procedures for violations of inmate rules of conduct before the serious misconduct panel.

(A) Scope: This rule governs the procedures employed before the serious misconduct panel for determining violations of the inmate rules of conduct, as described in rule 5120-9-06 of the Administrative Code, which may require placement in extended restrictive housing as defined in rule 5120-9-10 of the Administrative Code. This rule also sets forth procedures for appealing those determinations, and the documenting of those actions. Nothing in this rule shall preclude department staff from referring such inmate conduct to law enforcement for prosecution as a criminal offense, or the state from prosecuting such conduct as a criminal offense.

(B) The serious misconduct panel (SMP,) shall, at a minimum, consist of two staff members, designated by the respective regional director. Persons sitting on the SMP must have first completed training issued by the department's division of legal services. The SMP has the authority to determine guilt and place inmates in extended restrictive housing for serious violations of the inmate rules of conduct. The SMP also has the authority to make security level recommendations and mental health referrals for seriously mentally ill inmates who have committed serious violations of the inmate rules of conduct. Each panel shall consist of a chairperson, who manages the hearing, and a secretary, who prepares a record of the proceedings. No staff member shall be permitted to sit on the SMP if they wrote the report, witnessed the alleged rule violation, or participated in the investigation of the alleged rule violation. A staff member assigned the SMP shall disqualify himself or herself from the panel if such a personal interest exists.

(C) Time of hearing, preliminary matters. The inmate shall be given notice that the SMP intends to consider whether the inmate violated a serious rule of conduct, and if so, whether the inmate should be placed in extended restrictive housing or other appropriate placement. The inmate shall be provided at least twenty-four hours' notice from the date of service of the conduct report before conducting the hearing. The inmate may request a seven day extension from the date of service of the conduct report to prepare for the hearing. The SMP shall not exceed twenty-one calendar days from the date of service of the conduct report before conducting the hearing.

(D) Prior to the hearing, the SMP chairperson shall:

(1) Determine whether the hearing officer has provided the relevant information from the inmate's restrictive housing placement mental health assessments.

(2) Determine whether the person who issued the conduct report has indicated a desire to appear at the hearing,

(3) Make preliminary rulings on any witness requests, and arrange for the presence of witnesses,

(4) Insure staff assistance as appropriate,

(5) Insure all necessary forms are available and that electronic recording equipment is in working order.

(E) Hearing to be recorded: With the exception of deliberations concerning guilt or the imposition of penalties, the proceedings shall be recorded using suitable electronic means. The recording of the proceedings shall commence upon the inmate's appearance before the SMP. In addition to the electronic record, the record of the proceedings shall also include any document presented to the SMP, any written requests, waivers and statement summaries.

(F) Commencing the hearing. The SMP chairperson shall first identify the panel members and then ask the inmate to identify himself or herself on the record.

(1) The SMP chairperson shall advise the inmate of the rule violation(s) and the nature of the behavior described in the conduct report.

(2) Plea. The SMP chairperson shall then ask the inmate to admit or deny the rule violation(s).

(a) If the inmate admits the rule violation, the chairperson shall question the inmate regarding the voluntariness of the plea, the factual basis for the plea, and the inmate's understanding of the plea.

(b) The chairperson shall accept the plea unless the chairperson finds that the facts do not support the plea, or that the inmate's version of the facts do not support the plea, or that the inmate does not understand the nature of the plea, the violation, or the proceedings. In this event the chairperson shall enter a plea of denial on behalf of the inmate.

(c) If the chairperson accepts the inmate's plea of admission, the SMP panel may then make a determination of guilt and proceed with disposition of the violation.

(d) If a violation is denied, the SMP panel shall provide the inmate an opportunity to make a statement regarding the alleged violation.

(3) The SMP chairperson shall review the inmate's request for witnesses and advise the inmate of any preliminary determinations made regarding the requested witnesses. The SMP chairperson may deny a witness request based on relevancy, redundancy, unavailability, or security reasons. The SMP chairperson may modify a preliminary ruling after discussion with the inmate. The SMP chairperson may deny a request for a witness if a witness request form has not been completed.

(4) The SMP chairperson shall postpone the hearing if the chairperson believes that the inmate is demonstrating behavior indicative of serious mental illness and shall refer the inmate to the institutional mental health staff for a mental health assessment. The SMP hearing shall only be rescheduled in accordance with the recommendation of mental health staff.

(G) SMP hearing, witnesses. If a violation is denied, the SMP may hear testimony from witnesses in addition to any statement the charged inmate may make.

(1) Witnesses (inmates and staff members) shall be advised that they are subject to appropriate discipline for presentation of false testimony.

(2) The inmate charged with the rule violation may not address or examine a witness, but may ask the SMP chairperson to pose questions to the witness.

(3) The inmate, or representative number of inmates who made the accusation should, if security considerations permit, appear before the SMP and be examined for the record.

(4) The charged inmate may, in the discretion of the SMP, be excluded from the examination when confrontation between the inmates may create a risk of disturbance or risk of harm to the witness.

(5) The charging official shall appear if requested by the inmate, if the SMP has questions for the official, or if the charging official requests to appear and speak at the hearing.

(6) The SMP may ask questions of the witnesses or call additional witnesses as necessary. Witnesses may appear in person, by telephone, or other electronic means. The SMP may take testimony or receive evidence in any form or manner it deems appropriate.

(H) Confidential information. If the SMP uses information from a confidential source in its determination, the panel shall evaluate the credibility of the confidential source prior to reaching a decision on the rule violation. The SMP shall also determine whether the statement is confidential in its entirety or if any of the information can be disclosed to the inmate charged with the violation without disclosing the identity or jeopardizing the safety of the confidential source. The inmate charged with the offense shall not be present when the SMP considers and evaluates the confidential information. The panel shall record its evaluation on the appropriate form.

(I) The SMP members shall evaluate the credibility of witnesses and the probative value of other evidence presented to the SMP. The SMP shall assess the credibility of a witness, whether confidential or otherwise, the basis of common sense and a realistic assessment of the circumstances. In making these assessments the SMP may consider variety of factors including, but not limited to:

(1) The appearance and demeanor of the witness,

(2) The witness's disciplinary or criminal history,

(3) Whether it is against the witness's own interests to make the statement,

(4) Whether or not the witness has any ulterior motive in making the statement,

(5) Whether other evidence corroborates the statement,

(6) Whether the witness could have observed what is claimed,

(7) Whether the witness has previously provided reliable evidence,

(8) Whether the witness has a record or reputation for lying or honesty,

(9) Whether the witness's statements are consistent,

(10) The amount of detail provided,

(11) The willingness of the witness to appear and answer the questions of the SMP,

(12) The professional experience and judgment of the staff member evaluating the witness.

(J) If the charged rule violation is based on or supported by video evidence, the SMP shall review the video prior to reaching a decision on the rule violation.

(K) Amendment to conform to the evidence: The SMP panel may at any time prior to or during a hearing, change the designation of the rule or rules alleged to have been violated based on the conduct report, or testimony or evidence presented at the SMP hearing. The inmate shall be given timely notice of such a change. Such a change shall be made part of the record of the hearing. If the change results in a rule violation that does not meet the minimum requirements for consideration of placement in extended restrictive housing, the charges shall be referred back to the institutional RIB for a hearing under rule 5120-9-08 of the Administrative Code. If the change does not require a referral back to the institutional RIB, the SMP shall note the change in the disposition of the rule violation. If the change is made during the SMP hearing, the inmate may request a reasonable continuance. If the continuance is granted, the SMP hearing may recommence from the point of the continuance.

(L) After taking testimony and receiving evidence, the SMP shall vote and determine whether, based on the evidence presented, they believe that a rule violation occurred, the inmate committed that violation, and if so, whether to recommend that the inmate be placed in an extended restrictive housing assignment or other appropriate placement. The SMP panel may consider all information presented in reaching its determination, including any relevant information from the inmate's restrictive housing placement assessments and/or the inmate's mental health caseload status.

(1) No inmate shall be found to have violated a rule based solely on his or her past conduct.

(2) Past conduct may be considered when determining issues such as credibility and intent; or in considering suitable penalties.

(M) Both panel members must concur in a finding of guilt in order to find an inmate guilty of a rule violation and to recommend a placement in an extended restrictive housing assignment. In the event there are conflicting guilty and not guilty votes, the tie shall be broken by a staff member designated by the regional director, who shall cast the deciding third vote. The regional director's designee shall vote only after reviewing the oral and written record of the hearing.

(N) Determination and disposition. If a finding of guilt is made for a rule violation by the SMP that meets the minimum requirements of an extended restrictive housing placement, the SMP may recommend:

(1) Based upon the seriousness of the offense, placement of the inmate in an extended restrictive housing assignment at extended restrictive housing level 1 or level 3, as set forth in rule 5120-9-10 of the Administrative Code. No recommendations shall be made for initial placement at extended restrictive housing level 2; or,

(2) In the event the inmate is seriously mentally ill or mental health has otherwise indicated that the inmate should not be placed in an extended restrictive housing assignment, placement of the inmate in an appropriate mental health unit; or,

(3) That the inmate be referred back to the institutional classification committee for consideration of a security increase to another general population status and/or transfer to another institution.

(O) Documentation of disposition: Upon completing its deliberations, the SMP shall orally inform the inmate of its decision and disposition, as part of the electronic record. The SMP shall complete a disposition form, which shall contain the determination made by the panel regarding each rule violation, the factual basis of the determination, names of witnesses, and any disposition imposed.

(1) The form shall also include whether the panel relied on confidential information in reaching its determination and the panel's evaluation of the informant's credibility. The form shall not contain the name of any confidential informant or the nature of the confidential information.

(2) The form shall also include notice that the inmate may appeal the SMP's decision and the procedure for such an appeal.

(3) The completed disposition form shall be furnished to the inmate no later than three business days after the SMP reaches its decision.

(4) An inmate shall not be considered placed in an extended restrictive housing assignment until a final recommendation is made as indicated in paragraph (S) of this rule. However, for consideration of time frames for release from an extended restrictive housing assignment, an inmate shall be given credit for all time served in restrictive housing following the date of the alleged misconduct.

(5) In the event an inmate commits significant misconduct in an extended restrictive housing assignment pending a final recommendation, the credit for time served in restrictive housing runs from the date of the most recent misconduct.

(6) The person issuing the conduct report shall be permitted to review the completed SMP disposition but shall not be involved in the deliberations of the SMP.

(P) Appeal of SMP decision. An inmate may appeal the decision of the SMP by submitting the form designated for that purpose to the department's division of legal services within fifteen calendar days from the inmate's receipt of the SMP's disposition. The decision and the inmate's appeal shall initially be reviewed by an attorney assigned to the regional director for this purpose.

(1) The appeal shall state the inmate's allegations of procedural error and/or objections to the SMP's determination of guilt or recommended disposition.

(2) The division of legal services shall ensure that the decision of the SMP is supported by sufficient evidence, that there was substantial compliance with applicable procedures, and that the recommended disposition meets the minimum requirements of the recommended placement.

(Q) In the event the inmate does not submit an appeal, the division of legal services shall conduct a standard review of all SMP guilty findings to ensure that the SMP followed the procedures, rights and obligations set forth in this rule.

(R) The division of legal services shall take action on the appeal or review the SMP's decision within thirty calendar days of the receipt of the appeal or the expiration of the appeal deadline. The division of legal services shall take one of the following actions:

(1) If the decision recommends placement in an extended restrictive housing assignment or an appropriate mental health unit, forward the decision and recommendation of the SMP with the inmate's appeal or the standard review to the bureau of classification and reception advising whether the decision is supported by sufficient evidence, whether all applicable procedures were followed and whether the recommended disposition meets the minimum requirements for the recommended placement; or,

(2) If the decision recommends referral to an institutional classification committee for consideration of a general population security increase and/or transfer, forward the decision and recommendation of the SMP with the inmate's appeal or the standard review to the managing officer of the institution advising whether the decision is supported by sufficient evidence, whether all applicable procedures were followed and whether the recommended disposition meets the minimum requirements for the recommended placement; or,

(3) Return the case to the SMP for rehearing due to a violation of applicable procedures.

(S) The division of legal services shall notify the inmate of the action taken and the next steps in the process.

(1) If the decision recommends placement in an extended restrictive housing assignment or an appropriate mental health unit, the final decision shall be made in accordance with the procedures set forth in paragraphs (T) and (U) of this rule.

(2) If the decision recommends referral to an institutional classification committee, the final decision shall be made in accordance with the procedures set for in rule 5120-9-53 of the Administrative Code.

(T) A designee of the bureau of classification shall review the decision of the SMP, any appeal submitted by the inmate and the recommendation of the division of legal services before making a final decision as to the inmate's housing assignment.

(1) A final decision shall be made within thirty calendar days of the referral from the division of legal services.

(2) The inmate shall be notified of the decision within three business days of the date of the decision and shall be advised of the option to appeal the final decision on housing placement to the chief of the bureau of classification. An appeal shall be submitted within fifteen calendar days of the inmate's receipt of the final decision.

(U) The chief of the bureau of classification shall consider all appeals of final decisions on housing placements. In making the decision, the chief of the bureau of classification shall consider the recommendation of the SMP, the information presented by the inmate, the recommendation of the division of legal services and the final decision on the housing assignment made by a bureau of classification designee.

An appeal to the chief of the bureau of classification shall be decided within fifteen calendar days of the receipt of the inmate's appeal. The inmate shall be issued a written decision within three business days of the final decision.

Effective: 2/11/2017
Five Year Review (FYR) Dates: 02/11/2022
Promulgated Under: 111.15
Statutory Authority: 5120.01
Rule Amplifies: 5120.05