The U.S. Merit Systems Protection Board mitigated the termination of a guard charged with two “failure to report” violations, reducing the penalty to a 30 day suspension and ordering back pay and benefits.
Richard Andert was a guard at the U.S. Penitentiary in Florence, Colorado on February 15, 1996, when the disruptive behavior of prisoner Fred Davis required he be subdued. After securing Davis’ cellmate in another location, Andert, a 10 year veteran, assisted in the scuffle by pinning Davis’ legs. From that position, he observed guard Stephen Mills “deliver approximately six kicking gestures toward Davis’ upper left torso.”
It was undisputed that Andert failed to report Mills’ action that day or his statement the next day that he erased portions of the video tape of the incident. As such, “discipline in some form is warranted to promote efficiency in the Federal service.
Termination, however, was found to be too severe, for Andert’s failure to report did not greatly hinder the investigation. Andert did subsequently fully cooperate, as evidence by him revealing the statement about the tape erasure without being asked. Next, Andert exhibited great rehabilitative potential and “straightforwardly expressed remorse for his failures to report and an understanding of the importance of the following the reporting rules.
As such, Andert’s removal was cancelled in place of a 30 day suspension without pay. It was ordered in the February 18, 2000, order that he receive the “appropriate amount of back pay, with interest and to adjust benefits with appropriate credits. BOP also agreed to pay Andert’s attorney firm, Minaham and Shapiro in Lakewood, Colorado, $33,000 in attorney fees. See: Andert v. Department of Justice, U.S. Merit Systems Protection Board, Docket No DE-0752-00-0012-A-1
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Andert v. Department of Justice
|U.S. Merit Systems Protection Board, Docket No DE-0752-00-0012-A-1