WSR 06-18-062

PROPOSED RULES

DEPARTMENT OF CORRECTIONS


[ Filed September 1, 2006, 10:39 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-11-086 and 06-15-109.

Title of Rule and Other Identifying Information: Amendments to WAC 137-28-220 General infractions, 137-28-310 Decision of hearing officer, 137-28-380 Appeal to superintendent, 137-28-420 Continuances, 137-25-020 Definitions and 137-25-030 Serious infractions; create a new chapter 137-24 WAC, Special drug sentencing alternative revocation hearings.

Hearing Location(s): Department of Corrections, E. L. Goodrich Building, Olympic Room, #3017, 7345 Linderson Way S.W., Tumwater, WA 98501, on October 10, 2006, at 10 a.m.

Date of Intended Adoption: October 10, 2006.

Submit Written Comments to: John Nispel, P.O. Box 41114, Olympia, WA 98504-1114, e-mail jrnispel@doc1.wa.gov, fax (360) 725-8365, by October 9, 2006.

Assistance for Persons with Disabilities: Contact John Nispel by October 9, 2006, TTY (800) 833-6388.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Revise the general and serious infractions for prison and work release offenders and establish a procedure or revocation hearings for offenders sentenced under the drug offender sentencing alternatives (DOSA).

Reasons Supporting Proposal: These amendments will make technical corrections to general and serious infractions and clarify the process for DOSA revocation hearings.

Statutory Authority for Adoption: RCW 72.01.090, 72.65.100, and 72.09.130.

Statute Being Implemented: RCW 72.65.100 and 72.09.130.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Doreen Geiger, governmental.

Name of Agency Personnel Responsible for Drafting: Doreen Geiger/Lori Ramsdell-Gilkey, Olympia, (360) 753-1508; Implementation: Lori Ramsdell-Gilkey, Olympia, (360) 586-0844; and Enforcement: Ruben Cedeno, Olympia, (360) 725-8792.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These rules affect offenders only and will not impose costs on businesses.

A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to this rule adoption as the agency is not named in RCW 34.05.328 (5)(a)(i).

September 1, 2006

H. W. Clarke

Secretary

OTS-9097.1

Chapter 137-24 WAC

SPECIAL DRUG SENTENCING ALTERNATIVE REVOCATION HEARINGS


NEW SECTION
WAC 137-24-010   Purpose.   The purpose of this chapter is to specify policies and procedures pertaining to revocation of offenders, while in total/partial confinement, sentenced under the special drug offender sentencing alternative. Offenders sentenced under the special drug offender sentencing alternative, are mandated by statute to undergo a comprehensive substance abuse assessment and receive, within available resources, substance abuse treatment services. Offenders who fail to complete or are administratively terminated from the special drug offender sentencing alternative substance abuse treatment program are subject to reclassification and service of the unexpired term of his/her sentence as ordered by the sentencing court. The following regulations set forth procedural guidelines. They do not create procedural or substantive rights in any person and should not be interpreted or applied in such a manner as to abridge rights already guaranteed by the United States Constitution. The regulations should be interpreted as having sufficient flexibility to be consistent with law and permit the department to accomplish its statutory purposes.

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NEW SECTION
WAC 137-24-020   Definitions.   For purposes of this chapter, the following words have the following meanings:

(1) "Appeals panel" means three reviewing officers designated by the secretary with the authority to review hearing officer's decision, and to affirm, reverse, or modify decisions and sanctions in accordance with RCW 9.94A.205.

(2) "Department" means the Washington state department of corrections.

(3) "Deputy secretary" means the deputy secretary of the office of correctional operations of the department, or the deputy secretary's designee.

(4) "Hearing officer" means an employee of the department authorized to conduct department hearings.

(5) "Hearing program manager" means the manager/administrator of the hearings unit of the department, or the hearings program manager's designee.

(6) "Infraction" means commission of, attempt to commit, or conspiracy with another to commit any violation of prison rules as enumerated in chapter 137-28 WAC.

(7) "Lesser included" means an infraction that must necessarily have been committed in order to commit another infraction.

(8) "Negotiated sanction" means an agreement between the offender and the department, reviewed and signed off on by a hearings officer, in which the offender admits violations and agrees to comply with the imposed sanction(s).

(9) "Offender" means any person in the custody of or subject to the jurisdiction of the department.

(10) "Partial confinement" means confinement in a facility or institution operated or utilized under contract by the state or by any other unit of government, to include, but not be limited to, work release, treatment center, residential facility, or home detention with electronic monitoring.

(11) "Secretary" means the secretary of the department, or the secretary's designee.

(12) "Staff member" means any employee of the department of corrections, contract employee or volunteer.

(13) "Stipulated agreement" means an agreement between the offender and the department in which the offender admits violations and agrees to comply with the imposed sanction(s).

(14) "Total confinement" means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day, to include, but not be limited to, adult correctional facilities, camp or a county or municipal jail.

(15) "Working day" means Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, except for holidays observed by the state of Washington.

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NEW SECTION
WAC 137-24-030   Hearing procedures.   (1) Offenders accused of failing to complete or having been administratively terminated from an in-custody substance abuse program are entitled to a hearing prior to the revocation or to the imposition of sanctions by the department.

(2) The hearing shall be conducted by a hearing officer in the department's community corrections hearing unit, and shall be considered as an offender disciplinary proceeding and shall not be subject to chapter 34.05 RCW, the Administrative Procedure Act.

(3) Hearings shall be conducted within five working days, but not less than twenty-four hours, after service of the notice of allegations, hearing and rights, and waiver form.

(4) Prior to the commencement of a hearing, the hearing officer shall verify that proper notice of the hearing has been given and that the offender was properly served with the notice of allegations, hearing and rights, and waiver form, given a copy of the report of alleged violations, and provided with all supporting documentary evidence to be presented by the department.

(5) The hearing officer is authorized to find an inmate guilty of the lesser included offense, failure to program, WAC 137-25-030 #557, without issuing a new infraction report or conducting a new hearing.

(6) Hearings shall be electronically recorded and shall be retained in accordance with the department's retention schedule. An offender, who is the subject of the hearing, may request a copy of the recording of that hearing by submitting a request in writing.

(7) The offender may call witnesses to testify on his/her behalf at the hearing. The hearing officer may limit the number of witnesses and the scope of the testimony to matters relevant to the allegations and/or disposition.

(8) Confidential information will be considered in accordance with procedures of WAC 137-28-300(7).

(9) At the hearing, a treatment staff or facility member has the obligation of setting forth evidence supporting the allegations of violations and of offering recommendations of disposition.

(10) The department has the obligation of proving each of the allegations of violation by preponderance of the evidence.

(11) The hearing officer shall:

(a) Administer oaths and affirmation;

(b) Weigh the credibility of the witnesses;

(c) Rule on all procedural matters, objections and motions;

(d) Rule on offers of proof, and receive relevant evidence including hearsay evidence;

(e) Question witnesses called by the parties in an impartial manner to elicit any facts deemed necessary to fairly and adequately decide the matter;

(f) Render or defer a decision; and

(g) Take any other actions necessary and authorized by these rules and law.

(12) The hearing officer may grant a request for a continuance of the hearing as long as such continuation is granted for good cause and does not unduly delay the hearing.

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NEW SECTION
WAC 137-24-040   Rights specified.   (1) To receive written notice of the alleged violation of the DOSA sentence.

(2) To have an electronically recorded hearing conducted within five working days of service of the notice.

(3) To have a neutral and detached hearing officer conduct the hearing.

(4) To examine, no later than twenty-four hours before the hearing, all supporting nonconfidential documentary evidence which the department of corrections intends to present during the hearing.

(5) To admit to the allegation. This may limit the scope of the hearing.

(6) To be present during the fact-finding and disposition phases of the hearing.

(7) To present his/her case to the hearing officer. If there is a language or communication barrier, the hearing officer may appoint someone to interpret or otherwise assist the offender. However, no other person may represent the offender in presenting his/her case. There is no right to an attorney or counsel.

(8) To confront and cross-examine witnesses appearing and testifying at the hearing.

(9) To testify during the hearing or to remain silent. An offender's silence will not be held against him/her.

(10) To have witnesses provide testimony on his/her behalf, either in person or in a witnessed statement/affidavit. However, outside witnesses may be excluded due to institutional concerns. The hearing officer may also exclude persons from the hearing upon a finding of good cause, or if the information to be presented by the witnesses is deemed irrelevant, duplicative, or unnecessary to the adequate presentation of the inmate's case. In addition, the hearing officer may exclude a witness from testifying at a hearing or may require a witness to testify outside of the offender's presence when there is a substantial likelihood that the witness will not be able to give effective, truthful testimony with the offender present. In either event, the offender may submit a list of questions to ask the witness(es).

(11) To receive a written hearing and decision summary including the evidence presented; a finding of guilty or not guilty; and the reasons to support the findings of guilt; and the sanction imposed. In the event of a deferred decision to receive a copy of the hearing and decision summary from facility staff within a reasonable amount of time.

(12) To receive a copy of the department of corrections hearing report.

(13) To obtain a copy of the audio recording of the hearing. The offender must send a written request to the hearings unit.

(14) To appeal to the regional appeals panel, in writing, within seven calendar days of receipt of the hearing and decision summary. The offender may also file a personal restraint petition to appeal the department's final decision through the court of appeals.

(15) If the offender waives their right to be present at the hearing, the department of corrections may conduct the hearing in their absence and may impose sanctions that could include loss of liberty and/or reclassification/revocation of the DOSA sentence.

(16) To waive any or all of the above rights.

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NEW SECTION
WAC 137-24-050   Determination of competency.   (1) Whenever, as a preliminary matter, the offender of the community corrections officer raises the issue of the offender's competency, or there is a reason to doubt his/her competency, the hearing officer shall request a county mental health professional or a qualified expert within the department to examine the offender and report upon the mental condition and competency of the offender to participate in the hearing.

(2) Once the report is delivered to the hearing officer, the hearing shall be reconvened. Based on all evidence, including the competency evaluation, the hearing officer shall determine whether the offender is competent to participate in the hearing and shall determine the appropriate disposition.

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NEW SECTION
WAC 137-24-060   Appeals.   (1) Within seven calendar days of the hearing, the offender may appeal the decision of the hearing officer to the appeal panel. The request for review shall be submitted in writing and shall identify the specific issues on appeal.

(2) The sanction may be reversed or modified if a majority of the panel determines that the sanction is not reasonably related to the infraction behavior.

(3) The appeals panel will also examine evidence presented at the hearing and reverse any finding of a violation based solely on unconfirmed or unconfirmable allegations.

[]

OTS-9098.1


AMENDATORY SECTION(Amending WSR 05-24-009 and 06-02-038, filed 11/28/05 and 12/28/05, effective 5/1/06)

WAC 137-25-020   Definitions.   For the purposes of this chapter, the following words have the following meanings:

Abusive sexual contact - an incident in which the contact occurs without his/her consent or he/she was unable to consent or refuse. Abusive sexual contact includes one or more of the following behaviors:

Intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of the victim. It does not include kicking, grabbing or punching genitals when the intent is to harm or debilitate rather than to sexually exploit.

Adult correctional institution and institution - a facility identified in RCW 72.01.050(2) and any similar facility hereinafter established.

Aggravated assault - an assault resulting in physical injury and requiring medical care (see definition of medical care).

Assault - a physical attack upon the body of another person. The attack may be made with any instrument including, but not limited to, weapons, body parts, food products, or bodily secretions.

Attempted suicide - an unsuccessful attempt to kill oneself as determined by a medical or mental health professional.

Attempt - putting forth an effort to commit any infraction shall be considered the same as commission of the infraction. However, attempted aggravated assault shall be considered an attempted assault.

Bodily harm - physical pain or injury, illness, or impairment of physical condition.

Cell tag - if contraband or other violation is discovered in an area under control of the inmate (such as within the confines or contents of a cell), the contraband or other violation shall be constructively attributed to the inmate(s) assigned to that area, unless the inmate(s) can establish a lack of involvement in the infraction at the disciplinary hearing.

Conspiracy - an agreement between two or more persons to commit an infraction. Conspiracy to commit an infraction shall be considered the same as commission of the infraction.

Deputy secretary - the deputy secretary of the office of correctional operations of the Washington state department of corrections, or the deputy secretary's designee.

Discovery - when a staff member discovers that an infraction has occurred or when an investigation into the incident is concluded.

Earned time - means that portion of time an offender is eligible to earn for program participation approved by the classification process and consistent with his/her case management plan.

Earned release time - means the combined earned time and good conduct time credit an offender is eligible to earn off the minimum term established by the indeterminate sentence review board or the sentencing court.

Good conduct time credits - that portion of an inmate's potential reduction to minimum term which is authorized by RCW 9.95.070 and 72.09.130 and which may be lost by receiving serious infractions.

Hearing officer - staff member(s) designated by the superintendent or hearings program administrator to conduct disciplinary hearings.

Infraction - commission of, attempt to commit, or conspiracy with another to commit any violation of rules as enumerated in this code. Aiding or abetting another to commit an infraction will be considered the same as commission of the infraction.

Infraction review officer - staff member(s) designated by the superintendent to review a serious infraction.

Lesser included offense - any infraction that must necessarily have been committed in order to commit another infraction.

Medical care - any care conducted in a medical facility/treatment center by medical staff to treat a documented, physical injury, including, but not limited to, bandaging, suturing, surgery, etc. An examination conducted by medical staff to determine whether an injury has been sustained shall not be considered medical care.

Mental health professional - an individual with a unique set of knowledge, skills and abilities that makes him/her competent in either development, research, administration, assessment, prevention, treatment, education or training aimed at affecting the onset, occurrence, and maintenance of mental, behavioral and in some cases physical health disorders.

Mitigating factors - factors to be considered by the infracting officer in deciding whether to charge a #328 general infraction rather than a #728 serious infraction. Also, factors to be considered by the infraction review officer, hearings officer, and superintendent for the purpose of deciding whether a #728 serious infraction should be reduced to a #328 general infraction. Mitigating factors may include the seriousness of the sexually explicit material involved, whether the inmate has been convicted of a sexually motivated crime, the treatment needs of the inmate, the prior history of similar behavior, and the source of the material.

Possession - established when an item(s) is found on a person or in an area which is under the control of the individual(s) charged.

Promptly - to act as soon as reasonably possible, consistent with institutional goals of safety, security, and rehabilitation.

Secretary - the secretary of the Washington state department of corrections, or the secretary's designee.

Sexual harassment - any word, action, gesture or other behavior that is sexual in nature and that would be offensive to a reasonable person.

Sexual assault - an incident in which the act occurs against the will of the victim (without his/her consent and/or he/she is unable to consent or refuse) as the result of the threat of the force or force used to obtain compliance. A sexual assault includes one or more of the following behaviors:

Contact between the penis and the vagina or the penis and the anus involving penetration. It does not include kicking, grabbing or punching genitals when the intent is to harm or debilitate rather than to sexually exploit;

Contact between the mouth and the penis, vagina and/or anus;

Penetration of the anal or genital opening of another person by hand, finger or other object.

Sexually explicit - means a depiction of one of the following:

One of the participants in the sexual act is, or appears to be, nonconsenting;

One of the participants in the sexual act appears to be forceful, threatening, or violent;

One of the partners in the sexual act is dominating one of the other participants and one of the individuals is obviously in a submissive role or one of the participants is degraded, humiliated, or willingly engages in behavior that is degrading or humiliating;

One of the participants in the sexual act is a minor, or appears to be a minor, or a minor alone is depicted in a sexually suggestive way;

Actual penetration, be it penile/vaginal-oral, penile-anal, or penile-vaginal; digital-anal; digital-vaginal; or insertion of any inanimate object in the vaginal or anal cavity, and the depiction in the context presented is deemed to be a threat to legitimate penological objectives;

Any bodily excretory function which is sexual in nature;

Bestiality, sadomasochistic behavior, bondage; or

Material reasonably deemed to be a threat to legitimate penological objectives.

Staff member - for purposes of this chapter includes employees of the department of corrections, contract employees, and volunteers.

Superintendent - superintendent of an adult correctional institution or the superintendent's designee.

Working days - Monday through Friday, excluding weekends and holidays.

[Statutory Authority: RCW 72.01.090, 72.09.130, and 9.94.070. 05-24-009 and 06-02-038, 137-25-020, filed 11/28/05 and 12/28/05, effective 5/1/06.]


AMENDATORY SECTION(Amending WSR 05-24-009 and 06-02-038, filed 11/28/05 and 12/28/05, effective 5/1/06)

WAC 137-25-030   Serious infractions.  


Category A

501 - Committing homicide.
502 - Aggravated assault on another offender.
507 - Committing an act that would constitute a felony and that is not otherwise included in these rules.
511 - Aggravated assault on a visitor or community member.
521 - Taking or holding any person hostage.
550 - Escape ((or attempted escape)).
601 - Possession, manufacture, or introduction of an explosive device or any ammunition, or any components of an explosive device or ammunition.
602 - Possession, manufacture, or introduction of any gun, firearm, weapon, sharpened instrument, knife, or poison or any component thereof.
603 - Possession, introduction, use or transfer of any narcotic, controlled substance, illegal drug, unauthorized drug, mind altering substance, or drug paraphernalia.
604 - Aggravated assault on a staff member.
611 - ((Nonconsensual)) Sexual assault on a staff member.
612 - Attempted ((nonconsensual)) sexual assault of staff.
613 - Abusive sexual contact with staff.
635 - ((Nonconsensual)) Sexual assault on another offender.
636 - Attempted ((nonconsensual)) sexual assault of another offender.
637 - Abusive sexual contact with another offender.
650 - Rioting.
651 - Inciting others to riot.

((Category B

762 - Failing to comply with DOSA requirements.))

Category B - Level 1

504 - Engaging in sexual acts with others within the facility with the exception of approved conjugal visits.
553 - Setting a fire.
560 - Unauthorized possession of items or materials likely to be used in an escape attempt.
((588 - Causing a valid and documented threat of transmission of a contagious disease to any person due to intentional, negligent or reckless action.))
633 - Assault on another offender.
704 - Assault on a staff member.
711 - Assault on a visitor or community member.
744 - Making a bomb threat.

Category B - Level 2

505 - Fighting with any person.
556 - Refusing to submit or cooperate in a search when ordered to do so by a staff member.
607 - Refusing to submit to a urinalysis and/or failure to provide a urine sample when ordered to do so by a staff member within the allotted time frame.
608 - Refusing or failing to submit to a breathalyzer or other standard sobriety test when ordered to do so by a staff member.
609 - Refusing or failing to submit to testing required by policy, statute, or court order, such as DNA blood tests when ordered to do so by a staff member.
652 - Engaging in or inciting a group demonstration.
655 - Making intoxicants, alcohol, controlled substances, narcotics, or possession of ingredients, equipment, items, formulas, or instructions that are used in making intoxicants, alcohol, controlled substances, or narcotics.
682 - Engaging in or inciting an organized work stoppage.
707 - Possession, introduction, or transfer of any alcoholic or intoxicating beverage or substance.
716 - Unauthorized use of ((prescribed or over the counter medication)) an over the counter medication or failure to take as prescribed medication was required when administered under supervision.
736 - Possession, manufacture or introduction of unauthorized keys.
750 - Indecent exposure.
752 - Receiving a positive test for use of unauthorized drugs, alcohol, or other intoxicants.
830 - Any escape from work release with voluntary return within 24 hours.

Category B - Level 3

503 - Extortion, blackmail, demanding or receiving money or anything of value in return for protection against others, or under threat of informing.
506 - Threatening another with bodily harm or with any offense against another person, property, or family.
509 - Refusing a direct order by any staff member to proceed to or disperse from a particular area.
525 - Violating conditions of a furlough.
((557 - Refusing to participate in an available education or work program or other mandatory programming assignment.))
558 - Interfering with staff members, medical personnel, fire fighters, or law enforcement personnel in the performance of their duties.
600 - Tampering with, damaging, blocking, or interfering with any locking or security device.
605 - Impersonating any staff member, contracted staff member, volunteer, other offenders or visitor.
653 - Causing an inaccurate count or interfering with count by means of unauthorized absence, hiding, concealing oneself, or other form of deception or distraction.
654 - Counterfeiting, forgery, altering, falsification, or unauthorized reproduction of any document, article((, or)) of identification, money, security, or official paper.
660 - Unauthorized possession of money or other negotiable instruments the value of which is five dollars or more.
709 - Out-of-bounds: Being in another offender's cell or ((other area in the facility where not assigned or authorized;)) being in an area in the facility with one or more offenders without authorization.
738 - Possession of clothing of a staff member.
739 - Possession of personal information about currently employed staff, contractors, or volunteers, or their immediate family members, not voluntarily given to the offender by the individual involved; including, but not limited to: Social Security numbers, unpublished home addresses or telephone numbers, driver's license numbers, medical, personnel, financial, or real estate records, bank or credit card numbers, or other like information not authorized by the court or the superintendent.
745 - Refusing a transfer to another institution.
746 - Engaging in or inciting an organized hunger strike.
762 - Failing to complete, or administrative termination from, DOSA substance abuse treatment program. Note: This infraction must be initiated by authorized staff and heard by a community corrections hearing officer in accordance with chapter 137-24 WAC.
777 - Causing injury to another person by resisting orders, resisting assisted movement or physical efforts to restrain.
813 - Unauthorized/unaccounted time in the community or being in an unauthorized location in the community.
814 - While in work release, violation of an imposed special condition.
831 - While in work release, failure to return from an authorized sign out.
879 - Operating a motor vehicle without permission or in an unauthorized manner or location.

Category C - Level 1

508 - Throwing objects, materials, substances, or spitting ((at staff, visitors, or other offenders)) in the direction of another person(s).
517 - Committing any act that would constitute a misdemeanor and that is not otherwise included in these rules.
555 - Theft of property or possession of stolen property.
557 - Refusing to participate in an available education or work program or other mandatory programming assignment.
563 - Making a false fire alarm or tampering with, damaging, blocking, or interfering with fire alarms, fire extinguishers, fire hoses, fire exits, or other fire fighting equipment or devices.
610 - Unauthorized ((accumulation)) possession of prescribed medication greater than a single or daily dose.
620 - Receipt or possession of contraband during participation in off-grounds or outer perimeter activity or work detail.
659 - Sexual harassment.
663 - Using physical force, intimidation or coercion against any person.
702 - Possession, manufacture or introduction of an unauthorized tool.
708 - Organizing or participating in unauthorized group activity or meeting.
714 - Giving, selling, borrowing, lending, or trading money or anything of value to, or accepting or purchasing money or anything of value from, another offender or that offender's friend(s) or family, the value of which is ten dollars or more.
717 - Causing a threat of injury to another person by resisting orders, resisting assisted movement or physical efforts to restrain.
720 - Flooding a cell or other area of the institution/facility.
724 - Refusing a cell or housing assignment.
734 - Participating or engaging in the activities of any unauthorized club, organization, gang or security threat group; or wearing or possessing the symbols of an unauthorized club, organization, gang or security threat group.
810 - Failure to seek/maintain employment or training or maintain oneself financially or being terminated from a job for negative or substandard performance.

Category C - Level 2

552 - Causing an innocent person to be penalized or proceeded against by providing false information.
554 - ((Mutilating, altering, defacing,)) Damaging or destroying state property or any other item the value of which is ten dollars or more and that is not the personal property of the offender.
559 - Gambling; possession of gambling paraphernalia.
656 - Giving, receiving, or offering any person a bribe or anything of value for an unauthorized favor or service.
706 - Giving false information when proposing a release plan.
710 - Being tattooed while incarcerated, tattooing another, or possessing tattoo paraphernalia.
718 - Use of mail or telephone in violation of court order or local, state, or federal law.
726 - Telephoning or sending written communication or otherwise initiating communication with a minor without the approval of that minor's parent or guardian.
727 - Telephoning or sending written communications to any person contrary to previous written warnings or direction and/or documented disciplinary action.
728 - Possession of any ((written photographic or hand drawn)) sexually explicit material(s), ((that depicts sexually explicit acts)) as defined ((in)) by department policy and/or WAC 137-25-020.
740 - Fraud, embezzlement, or obtaining goods, services, money, or anything of value under false pretense.
742 - A pattern of creating a false emergency by feigning illness.
778 - Providing a ((false and/or adulterated urine sample)) urine specimen that has been diluted, substituted or altered in any way.

Category C - Level 3

551 - Providing false information to the disciplinary hearings officer or on a disciplinary appeal.
606 - Possession, introduction, or transfer of any tobacco, tobacco products, matches, or tobacco paraphernalia.
657 - Being found guilty of four or more general infractions arising out of separate incidents within a 90-day period.
658 - Failing to comply with any administrative or posthearing sanction imposed for committing any general or serious infraction.
662 - Soliciting goods or services for which the provider would expect payment when the offender knows or should know that no funds are available to pay for those goods or services.
712 - Attempted suicide as determined by mental health staff.
713 - Self-mutilation or self-harm.
741 - Theft of food the value of which is more than five dollars.
755 - Misuse or waste of issued supplies, goods, services, or property the replacement value of which is ten dollars or more.
((810 - Willful failure to seek/maintain employment or training oneself financially or being terminated from a job for negative or substandard performance.))
811 - Entering into an unauthorized contract.
812 - Failure to report/turn in all earnings income.
((854 - Destroying or damaging state property, or the property of another person.))
861 - Performing or taking part in an unauthorized marriage.

((Definitions: Attempting to commit or aiding another person to commit a serious infraction - such action shall be considered the same as commission of the offense itself.)) (1) In determining whether a #728 infraction or a #328 infraction pursuant to WAC 137-25-030 should be charged, the infracting officer shall consider mitigating factors as defined in WAC 137-25-020.

(2) Attempts to commit infraction #611 or #635 are now separate infractions #612 and #636 for the Prison Rape Elimination Act (PREA) reporting purposes only and do not impact the definition in WAC 137-25-020 which includes "attempts."

[Statutory Authority: RCW 72.01.090, 72.09.130, and 9.94.070. 05-24-009 and 06-02-038, 137-25-030, filed 11/28/05 and 12/28/05, effective 5/1/06.]

OTS-9099.1


AMENDATORY SECTION(Amending WSR 02-12-023, filed 5/28/02, effective 6/28/02)

WAC 137-28-220   General infractions.   (1) Any of the following types of behavior may constitute a general infraction:

Unauthorized possession/theft
051 - Unauthorized possession of money, stamps or negotiable instruments the total value of which is less than five dollars.
053 - Possession of anything not authorized for retention or receipt by an inmate and/or not issued to an inmate by regular institutional channels.
255 - Misuse or waste of issued supplies, goods, services or property, the replacement value of which is less than ten dollars.
310 - Pretending or failing to take prescribed medication that the inmate has accepted by concealing or retaining a single or daily dose.
354 - Theft of food, the value of which is five dollars or less.
356 - Possession of unauthorized amount of otherwise authorized clothing, bedding, or issued supplies.
Loaning/trading
052 - Loaning of property for profit.
351 - Giving, selling, borrowing, lending, or trading money or anything of value to, or accepting or purchasing money or anything of value from, another inmate or that inmate's friend(s) or family the value of which is less than ten dollars.
Altering/destroying property
055 - Mutilating, altering, defacing or destroying any item valued at less than ten dollars and that is not the personal property of the inmate.
Disruptive behavior/lying
202 - Abusive language, harassment or other offensive behavior directed to or in the presence of staff, visitors, inmates, or other persons or groups.
203 - Lying to a staff member.
244 - Unauthorized displays of sexual affection with another inmate.
353 - Disruptive behavior.
355 - Horseplay, roughhousing or any other unauthorized physical contact between inmates.
357 - Unauthorized demonstration, practice or use of martial arts.
Failure to follow rules and orders
102 - Failure to follow any written rules or policies adopted by the institution and not specified within this chapter or in local disciplinary rules.
103 - Refusing or failing to obey an order, oral or written, of any staff member.
210 - Out of bounds; being in an area where the presence of the inmate is unauthorized.
214 - Interfering or failing to comply with count procedures.
251 - Smoking and possession of tobacco products where prohibited.
301 - Failure to keep your person or your quarters in accordance with institution rules or policies.
((307 - Performing or taking part in an unauthorized marriage.))
Unauthorized communication/visitor contact
303 - Unauthorized use of mail or telephone.
304 - Unwanted written and telephonic communications to any person.
305 - Correspondence or conduct with a visitor in violation of published or posted rules and policies.
309 - Unauthorized display of affection with a visitor.
Inappropriate use of equipment
212 - Using any equipment or machinery when not specifically authorized or contrary to instructions or safety standards.
((213 - Using any equipment or machinery contrary to instructions or safety standards.))
Unexcused absence/feigning illness
104 - Unexcused absence from work or any assignment, scheduled meeting, appointment, or call out.
352 - Pretending to be ill or injured contrary to medical/mental health screening results.
Inappropriate sexual behavior
328 - Possession of any written, photographic or hand-drawn material that depicts a sexually explicit act as defined in WAC 137-28-160.

(2) In determining whether a #328 infraction or a #728 infraction pursuant to WAC ((137-28-260)) 137-25-030 should be charged, the infracting officer shall consider mitigating factors as defined in WAC 137-28-160.

[Statutory Authority: RCW 72.01.090, 72.09.130, and 9.94.070. 02-12-023, 137-28-220, filed 5/28/02, effective 6/28/02. 01-22-094, 137-28-220, filed 11/6/01, effective 12/6/01. Statutory Authority: RCW 72.01.090. 00-10-079, 137-28-220, filed 5/2/00, effective 6/2/00; 97-03-041, 137-28-220, filed 1/10/97, effective 2/4/97. 95-15-044, 137-28-220, filed 7/13/95, effective 8/15/95.]


AMENDATORY SECTION(Amending WSR 95-15-044, filed 7/13/95, effective 8/15/95)

WAC 137-28-250   Appeals.   (1) The sanctions for a finding of guilty of a general infraction may be appealed by the inmate to the major hearing officer of the institution.

(a) The appeal must be in writing and must include the reason why the inmate believes the action taken was incorrect.

(b) The appeal must be delivered to the hearing officer within twenty-four hours after the inmate receives notice of the action taken.

(c) Failure to follow appeal procedures will be deemed a waiver of the appeal.

(2) Within ten working days after receipt of the appeal, unless the time is extended by the superintendent, the hearing officer will decide either to:

(a) Schedule a hearing on the appeal; or

(b) Affirm, modify downward, or reverse the finding of guilty without a hearing.

(3) Once a decision of the hearing officer is made, the inmate shall be notified within seventy-two hours, unless the time period is extended by the superintendent.

(4) Sanctions are not stayed upon appeal.

[95-15-044, 137-28-250, filed 7/13/95, effective 8/15/95.]


AMENDATORY SECTION(Amending WSR 02-12-023, filed 5/28/02, effective 6/28/02)

WAC 137-28-310   Decision of hearing officer.   (1) A report of the hearing shall be made.

(a) The report shall include:

(i) The charge;

(ii) Names of witnesses;

(iii) Inmate plea(s);

(iv) Summary of the testimony and cross-examination;

(v) A description of the physical evidence used;

(vi) Reasons for denying witnesses or the fact that written witness statements were not returned to the hearing officer; and

(vii) The decisions and reasons.

(b) The written report shall be placed in the inmate's institutional file if he/she is found guilty.

(c) All reports and attachments shall be maintained by the clerk as part of the hearing officer's permanent records. A complete taped record of the hearing shall be taken but the tape shall not become a part of the inmate's file, and may be destroyed ((one hundred twenty days after the date of the hearing)) in accordance with the department's archive retention schedule unless the hearing officer becomes aware that an appeal or court proceeding is pending.

(2) In reaching a decision on the guilt or innocence of the inmate, the hearing officer must rely solely on evidence considered at the hearing. However, during the dispositional stage of the hearing, other factors, such as the inmate's institutional file, prior conduct, mental status, and overall institution adjustment, may be considered.

(3) The hearing officer may not find an inmate guilty of committing a #328 or #728 infraction if the inmate possesses sexually explicit materials depicting only actual penetration and such sexually explicit material was screened and approved by a mail room staff member prior to delivery to the inmate. Nothing herein shall be construed to limit the ability to remove such material from the inmate's possession and cell.

(4) The hearing officer shall consider mitigating factors in determining whether to reduce a #728 serious infraction to a #328 general infraction.

(5) The hearing officer is authorized to find an inmate guilty of a lesser included offense without issuing a new infraction report or conducting a new hearing.

(6) Where the evidence suggests an inmate is guilty of an offense not charged and which is not a lesser included offense to a charged offense, the hearing officer may recommend that new charges be filed to address such offenses. The inmate may waive the right to a separate hearing on the new charges and may allow the hearing officer to enter a finding of guilty or not guilty and impose sanctions.

(7) The inmate shall be informed of the decision of the hearing officer in writing within three working days of the hearing, unless extended by the superintendent.

(8) The inmate shall be informed of his/her right to appeal the decision of the hearing officer to the superintendent.

[Statutory Authority: RCW 72.01.090, 72.09.130, and 9.94.070. 02-12-023, 137-28-310, filed 5/28/02, effective 6/28/02. Statutory Authority: RCW 72.01.090. 00-10-079, 137-28-310, filed 5/2/00, effective 6/2/00; 95-15-044, 137-28-310, filed 7/13/95, effective 8/15/95.]


AMENDATORY SECTION(Amending WSR 02-12-023, filed 5/28/02, effective 6/28/02)

WAC 137-28-380   Appeal to superintendent.   (1) An inmate or the inmate's staff advisor may appeal the decision of the hearing officer to the superintendent by filing a written request for review with his/her reasons with the clerk within fifteen days, exclusive of weekends and holidays, after receiving notice of the decision of the hearing officer. The superintendent may consider appeals filed beyond the fifteen-day period.

(2) The clerk shall promptly transmit the appeal and the hearing record to the superintendent.

(3) The superintendent shall act on the appeal within ten working days of its receipt. The superintendent may affirm the decision of the hearing officer; reduce the charge to a lesser included offense; reduce a #728 serious infraction to a #328 general infraction based upon mitigating factors; reduce the severity of the sanctions imposed; vacate the judgment of the hearing officer; or remand the matter for a new hearing. Any new hearing may not result in an increase in the severity of the sanctions originally imposed unless the inmate is charged with related or additional offenses.

(4) The inmate shall be notified promptly of the decision of the superintendent.

(5) Sanctions are not stayed upon appeal.

[Statutory Authority: RCW 72.01.090, 72.09.130, and 9.94.070. 02-12-023, 137-28-380, filed 5/28/02, effective 6/28/02. Statutory Authority: RCW 72.01.090. 00-10-079, 137-28-380, filed 5/2/00, effective 6/2/00; 95-15-044, 137-28-380, filed 7/13/95, effective 8/15/95.]


AMENDATORY SECTION(Amending WSR 00-10-079, filed 5/2/00, effective 6/2/00)

WAC 137-28-420   Continuances.   (1) At any time during the disciplinary process, the hearing officer may continue the hearing for any reasons, including the following:

(a) To determine the inmate's mental status or competency.

(b) To appoint a staff advisor.

(c) To obtain an interpreter.

(d) To obtain witnesses or witness statements.

(e) ((To order an investigation into the incident.

(f))) To correct errors.

(((g))) (f) To obtain a replacement hearing officer.

(((h))) (g) To obtain crime lab reports or other documentation.

(((i))) (h) Due to the inmate's and/or witness' unavailability.

(((j))) (i) Because the inmate is on escape, court-ordered custody, at a non-DOC facility, in transit, etc.

(((k))) (j) A reasonable request by the inmate.

(((l))) (k) To determine restitution costs.

(2) Continuances shall be for no longer than necessary, but shall not exceed twenty working days, unless approved by the superintendent.

(3) Hearings for inmates on escape status, court-ordered custody, in transit at a nondepartment of corrections' facility or otherwise unavailable may be continued up to a period not to exceed twenty working days after their return to the facility where the infraction originated.

[Statutory Authority: RCW 72.01.090. 00-10-079, 137-28-420, filed 5/2/00, effective 6/2/00; 95-15-044, 137-28-420, filed 7/13/95, effective 8/15/95.]

Washington State Code Reviser's Office