Despite flawed performance during Biendl murder investigation, job loss too severe
By Polly Keary, Editor
Four Monroe prison employees will get their jobs back, along with back pay, following a successful union appeal of their job losses over events that took place the night of the murder of corrections officer Jayme Biendl, Jan. 29, 2011.
After the police murder investigation was completed, which resulted in a sentence of death for attacker Byron Scherf, the Department of Corrections conducted an internal investigation.
Three corrections officers, including David Young, George Lyons and Charles Maynard, were fired, and Sgt. Christopher Johnson was demoted after the internal investigation found that that three of the employees had made false statements, and that staff hadn't adequately complied with safety and security procedures.
Teamsters 117, the union that represents the workers, filed a grievance. In late January and early February, the case went to arbitration. Attorneys continued to file briefs until mid-May.
In a 54-page ruling, arbitrator Michael E. Cavanaugh rendered a decision July 7 reinstating the three fired employees and reversing the demotion of Sgt. Johnson, stating that the employees had been at fault for some of their actions, but that the disciplinary actions taken by the prison were too severe.
DOC investigation finds fault
When the DOC internal investigation was over, the events of the night of the death of Biendl seemed to reveal several failures of the system intended to keep the prison safe.
Inmates go to their cells to be counted every night at 9 p.m. When inmates are moving around the prison, there are certain officers who stand at certain positions to supervise and make sure everyone goes where they are supposed to go. There are also staff in several towers who control all the gates, write down the inmate count number in each area, and after the inmates go back to their cells for count, confirm in a log book that each area is empty of inmates. The staff in Tower 9 are also supposed to ensure that the staff are safely out of their areas, too.
The night of the murder, Officer Jayme Biendl, a former Officer of the Year, was working alone in the chapel of the prison, as she had done for years. Inmate Byron Scherf was there, as he was a chapel volunteer. At 8:30, Biendl started moving everyone out of the chapel, back to their cells for the 9 p.m. count.
But that night, inmate Byron Scherf snuck back into the chapel, crept up behind Biendl and attacked her, strangling her with a microphone cable.
When officers counting inmates in the cells noticed Scherf wasn't in his, they sent officers to go find him. They found him sitting in the entryway to the chapel, where he said he'd fallen asleep. He said that Biendl had missed him when she sent everyone back to their cells for the count.
The officers brought Scherf out to the office to be questioned. No one checked the chapel itself.
An hour later, at 10 p.m., there was a shift change. The workers at main control realized that Biendl hadn't ever turned in her equipment at the end of her shift, which had ended at 9 p.m.
They called her home number, and when they got no response, they went out to the chapel to see if they could find her. They found her body at 11:26 p.m, hours after she had been killed.
Later, investigators pieced together the events from the night.
At 9 p.m., when Scherf didn't show up at his cell for the count, an officer was sent to go look for him. On the way, that officer met a couple more officers, including officer Maynard, who later lost his job.
Maynard headed for the chapel, and then called and said he needed back up. He'd gone into the chapel and found Scherf sitting there, claiming he'd fallen asleep there. The other two officers started taking Scherf back to the main office for questioning, and Maynard turned out the lights in the chapel.
Officer George Lyons, who was later fired, had been the officer in Tower 9, and was supposed to make sure all the officers, including Jayme Biendl, were safely out of their areas after all the inmates had gone back to their cells for count. Lyons wrote in the log book that that the chapel was secure at 9:45, even though Biendl never radioed in that it was clear, nor had she left the chapel.
Lyons later said he thought he'd seen her leave and close the gate, which is how he usually knew she was clear of the chapel.
David Young, the third person to later be fired, was one of the officers who was supposed to be standing in a particular area while the inmates moved back to their cells. Investigators later determined that he hadn't been where he was supposed to be, and some other officers said that Young often wasn't where he was supposed to be for the inmates' movement. They also said that Young later lied about it.
Young's whereabouts were of particular interest to investigators, because Scherf later said he'd looked to see if anyone was standing where Young was supposed to be standing, and as he didn't see anyone, he snuck back in to the chapel to attack Biendl.
Young rejoined that while he had not been where he was technically supposed to be, he was in a spot that his supervisors had previously told him was okay.
Sergeant Christopher Johnson was the person who was supposed to make sure Young was where he was supposed to be, and who was supposed to document the behavior of the officers he supervised. Investigators said that Johnson failed in that duty.
Johnson said that he thought officer's complaints against Young were just "infighting" and said that lots of officers weren't where they were supposed to be when the inmates moved back to their cells, and said that he had so much paperwork to do that a lot of times he wasn't able to supervise the officers as closely as he'd have liked.
Arbitrator sides with workers
The labor dispute arbitrator, Michael E. Cavanaugh, said that the prison had some culpability, too. Two other agencies had identified flaws in prison security. And Cavanaugh said a "problematic complacency" had infected the institution, which he noted is common.
"I do not intend to sound judgmental in that observation," he wrote. "Unfortunately, complacency in corrections is not unusual, nor is it necessarily confined to line staff."
He noted that the department hadn't acted on Biendl's request for better security in the chapel, and that one agency questioned placing an inmate sentenced to life without parole, who had said that he had problems being supervised by female officers, in a volunteer post with a female officer working alone.
Cavanaugh considered each officer's case individually.
He said that Lyons clearly had put information in the log book that was untrue, when he logged that all the offenders and Biendl had left the chapel, and Scherf and Biendl had not. But, Cavanaugh said, in order to fire someone for falsifying records, typically one must prove that the person who did it did so to deceive the employer or get some unearned benefit (falsifying time cards, for example.) Lyons had only erred in assuming that the chapel was clear, and hadn't been trying to get personal benefit.
Therefore, firing was too severe, he said.
He ordered that Lyons should be given a written reprimand, restored to his position without loss of seniority and compensated for his lost wages and benefits.
The prison fired Officer Charles Maynard because they said that, after having found Scherf sitting outside the chapel, he lied when he wrote in a report that he'd inspected the chapel. If he had, management reasoned, he'd have found Biendl's body.
But Cavanaugh ruled that "inspected" didn't necessarily mean "searched."
And although the prison management questioned whether he should have searched, Cavanaugh said, Maynard had reason to think that the most important thing to do at that point was to help the other two officers escort Scherf to the office for questioning about why he'd been sitting there at the chapel when he was supposed to be in his cell for count.
Cavanaugh also said that Maynard's discrepancies during questioning weren't so egregious that they merited firing. He, too, should get a reprimand, but get his job back and back wages, Cavanaugh ruled.
Officer David Young wasn't standing in the spot he was supposed to be standing when the murder occurred, Cavanaugh agreed. But the rules about where people were supposed to stand were so poorly enforced that they couldn't be considered genuine rules, he stated. And since other officers were frequently not where they were supposed to be either, singling out Young was too harsh.
And while Young might have demonstrated more willingness to take responsibility for his own actions, allegations that he was dishonest under questioning weren't adequately proven, the arbitrator said.
Young should have gotten some form of corrective action, but not termination, and so he should get his job back and back wages, as well, said Cavanaugh.
Sergeant Christopher Johnson, who was demoted, overlooked Young's subpar ability to follow rules and be where he was supposed to be, as well as the very poor teamwork on his staff. But that wasn't actual misconduct, but rather substandard performance, said Cavanaugh. And institutional complacency and a high paperwork load were factors, too.
Substandard performance is supposed to be handled with corrective measures before demotion, the union argued, and Cavanaugh agreed.
A reprimand would have sufficed, he said, and he ordered Johnson's demotion reversed.
But Cavanaugh shot down a union request that the prison pay interest on the back wages.
DOC stands by firings
The Department of Corrections, in a statement issued after Cavanaugh's decision was rendered, didn't back down.
"We took disciplinary action because of the serious nature of the staff members' actions GÇô including falsifying documents and lying to police investigators GÇô which does not accurately represent the professionalism of our staff. We can only be an effective agency if we hold ourselves accountable for our actions, which we did in this case," the statement read.
And the DOC might not be done with the matter, the message suggested.
"We are reviewing the arbitrator's decision and will determine what actions to take," the statement said.
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