Department of Corrections v. Derry

510 S.E.2d 832, 235 Ga. App. 622, 99 Fulton County D. Rep. 163, 1998 Ga. App. LEXIS 1566
CourtCourt of Appeals of Georgia
DecidedDecember 4, 1998
DocketA98A1204
StatusPublished
Cited by2 cases

This text of 510 S.E.2d 832 (Department of Corrections v. Derry) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Corrections v. Derry, 510 S.E.2d 832, 235 Ga. App. 622, 99 Fulton County D. Rep. 163, 1998 Ga. App. LEXIS 1566 (Ga. Ct. App. 1998).

Opinions

Pope, Presiding Judge.

Wayne Correctional Institution Officer Ernest Roberson filed a disciplinary report against inmate Troy Bostic for failing to wear a belt to a meal, as required by prison regulations, and for cursing when Officer Roberson confronted him about the belt. After the report was filed, inmate Bostic asked Corrections Officer Gregory Derry, who had seen the incident regarding the belt, whether he thought Officer Roberson was harassing Bostic. Officer Derry told Bostic that he did believe that Officer Roberson was harassing him. Based on his statements to the inmate, Derry was terminated from his position as a correctional officer for violating Department of Corrections (DOC) and Wayne prison rules prohibiting officers from engaging in personal conversations with inmates and from criticizing other officers in front of inmates. Derry appealed his termination to the State Personnel Board, which upheld the termination. Derry next appealed to superior court. The court reversed the board’s ruling, finding that the inmate’s due process rights to defend himself against the disciplinary report filed by Officer Roberson authorized Derry’s comments to the inmate. We granted the DOC’s application for discretionary review and reverse the superior court’s decision.

1. The court based its decision on OCGA § 45-20-9 (m) (1), which provides that a court may reverse the decision of the board if substantial rights of the petitioner have been prejudiced because the board’s decision violates constitutional or statutory provisions. The court’s rationale under this Code section was erroneous. The court reasoned that the board’s decision to dismiss Derry violated the inmate’s due process rights to defend himself in the disciplinary action taken against him. As the words emphasized above indicate, the court may only reverse the board’s decision if the rights of the petitioner, in this case the rights of Derry, have been prejudiced. The Code section does not authorize the court to reverse the board’s decision based on the rights of a third-party inmate.

Moreover, we disagree with the court’s finding that the DOC prohibitions against an officer engaging in personal conversations [623]*623with an inmate and criticizing another officer in front of an inmate somehow abridge the inmate’s ability to defend himself in a prison disciplinary action. There is evidence in the record of the procedures to be followed in a disciplinary action, and those procedures allow an inmate to call an officer as a witness at the disciplinary hearing. In fact, the inmate involved in the instant case named Derry as a witness and Derry testified on the inmate’s behalf at the disciplinary hearing. Thus, the enforcement of the DOC regulations, which help ensure the security of both prison officials and inmates, did not prejudice the inmate’s rights.

Nevertheless, even if the inmate’s due process rights were violated by the dismissal of Derry for breaching DOC regulations against having a personal conversation with an inmate, that violation would not provide a legal basis under OCGA § 45-20-9 (m) (1) for reversing the board’s decision. The court could have reversed the board’s decision under that Code section only if it found that the decision prejudiced Derry’s rights. Because the court made no such finding and instead based its ruling on the erroneous legal analysis that the due process rights of an inmate warranted the reversal of the board’s decision to dismiss Derry, the court’s ruling cannot stand. See generally Dept. of Corrections v. Shaw, 217 Ga. App. 33, 35-36 (2) (456 SE2d 628) (1995); Dept. of Transp. v. Nobles, 187 Ga. App. 244 (370 SE2d 11) (1988).

2. The dissent contends that Derry’s improper comments to inmate Bostic cannot be condemned because there are no DOC or Wayne Correctional Institution rules prohibiting a prison guard from engaging in a private conversation with a prison inmate in which the guard criticizes another prison officer’s job performance. While the rules in question do not specifically state that an officer shall not criticize another officer in front of an inmate,1 the general conduct prohibited by the rules covers such inappropriate criticism of an officer in the presence of an inmate.

The DOC Rules, Chapter 125-2-1-.07 (d), provide: “Employees shall not, without the express written approval of the appropriate Deputy Commissioner, maintain personal association with, engage in personal business or trade with, or engage in non-job related correspondence with, or correspond in behalf of or for, known inmates. . .

[624]*624Additionally, the Wayne Correctional Institution General Post Orders instruct officers: “Do not establish personal friendships with any inmate. . . . Never become engaged in conversations with inmates that involve the low rating of the Administration or any communications that might be regarded as relating security information to inmates. Act as an authority figure, not a friend. If you are ever in doubt as to the validity of an inmate’s statement, check it out with your supervisor.”

Moreover, the back of Derry’s officer identification card expressly provides: “THERE SHALL BE NO PERSONAL OR BUSINESS DEALING WITH INMATES, PROBATIONERS, OR PAROLEES.”

Contrary to the dissent’s contention, Derry’s criticism of Officer Roberson’s job performance during a private conversation with inmate Bostic is a personal communication that compromised the security of the prison by appearing to pit one officer against another. As the charge against Derry asserted: “In involving yourself in a personal conversation with an inmate in which you revealed information involving a fellow officer you violated the Department’s prohibition against interpersonal dealings with an inmate and, thereby, breached the security of Wayne C.I., compromised your ability to supervise inmates effectively, and jeopardized the safety and welfare of yourself as well as other employees and inmates.” We cannot join in the dissent’s attempt to substitute its judgment for that of the prison and DOC officials, who determined that under their own policies Derry’s criticism of Officer Roberson was an improper personal association with an inmate.

3. In the alternative, the dissent concludes that even if Derry violated DOC and prison policy, his private conversation with the inmate about another prison guard’s job performance is protected speech under the First Amendment.2 We disagree and believe that the dissent’s conclusion and the First Amendment analysis supporting it are incorrect.

In relying on the First Amendment to uphold the trial court’s ruling, the dissent ignores the fact that the trial court made no mention of the First Amendment in its ruling. As noted in Division 1 of this opinion, the sole basis for the court’s reversal of the board’s decision was the purported violation of the inmate’s due process rights. The court made absolutely no finding concerning Derry’s free speech rights. Thus, contrary to the dissent’s claims, the First Amendment provides no basis for finding that the court’s conclusions of law were [625]*625correct.

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Bluebook (online)
510 S.E.2d 832, 235 Ga. App. 622, 99 Fulton County D. Rep. 163, 1998 Ga. App. LEXIS 1566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-corrections-v-derry-gactapp-1998.