WSR 02-12-023

PERMANENT RULES

DEPARTMENT OF CORRECTIONS


[ Filed May 28, 2002, 4:02 p.m. ]

Date of Adoption: May 28, 2002.

Purpose: The amendments refine the definitions for general and serious infractions, reclassify a serious infraction as a general infraction, add new infractions, eliminate a stay of sanctions pending appeal to the superintendent and make corrections to preserve internal cross references. Refine the definitions of general and serious infractions for the purposes of prison discipline.

Citation of Existing Rules Affected by this Order: Amending WAC 137-28-160, 137-28-220, 137-28-240, 137-28-260, 137-28-310, 137-28-350, and 137-28-380.

Statutory Authority for Adoption: RCW 72.01.090, 72.09.130, and 9.94.070.

Adopted under notice filed as WSR 02-09-002 on April 3, 2002.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 7, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 7, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Effective Date of Rule: Thirty-one days after filing.

May 28, 2002

Patria Robinson-Martin

Chief of Staff

for Joseph D. Lehman

Secretary

OTS-5466.3


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

WAC 137-28-160   Definitions.   For the purposes of this chapter, the following words have the following meanings:

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.

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 to conduct disciplinary hearings.

Infraction - commission of, attempt to commit, or conspiracy with another to commit any violation of prison 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.

Mitigating factors - factors to be considered by the infracting officer in deciding whether to charge a #((728(a))) 328 general infraction rather than a #728(((b))) serious infraction. Also, factors to be considered by the infraction review officer, hearings officer, and superintendent for the purpose of deciding whether a #728(((b))) serious infraction should be reduced to a #((728(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.

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. 00-10-079, 137-28-160, filed 5/2/00, effective 6/2/00; 97-03-041, 137-28-160, filed 1/10/97, effective 2/4/97. 95-15-044, 137-28-160, filed 7/13/95, effective 8/15/95.]


AMENDATORY SECTION(Amending WSR 01-22-094, filed 11/6/01, effective 12/6/01)

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.
(([520 - Unauthorized demonstration, practice or use of martial arts.]))
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.
(([661 - Performing or taking part in an unauthorized marriage.]))
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.
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
((728(a))) 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 #((728(a))) 328 infraction or a #728(((b))) infraction pursuant to WAC 137-28-260 should be charged, the infracting officer shall consider mitigating factors as defined in WAC 137-28-160.

[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 01-22-094, filed 11/6/01, effective 12/6/01)

WAC 137-28-240   General infractions(([ -- Sanctions])) -- Sanctions.   (([Sanctions.]))

For being found guilty of any general infraction, one or more of the following sanctions may be imposed:

(1) Reprimand or warning;

(2) Issuance of a written order to cease a problematic behavior. The order will include a warning that if the behavior is repeated within a specified period (not to exceed one hundred eighty days) the inmate will be charged with violation of serious violation (WAC 137-28-260) #658.

(3) Loss of a privilege or privileges as specified by the supervisor or unit team for not more than ten days on a first offense, twenty days on a second offense, and thirty days on a third offense within a six-month period;

(4) Confinement to room or cell except for attendance at work or school assignment, religious service, or meals, or law library if a documented court deadline has been imposed, not to exceed ten days;

(5) Up to one hundred twenty hours of extra work duty.

[01-22-094, 137-28-240, filed 11/6/01, effective 12/6/01; 95-15-044, 137-28-240, filed 7/13/95, effective 8/15/95.]


AMENDATORY SECTION(Amending WSR 01-22-094, filed 11/6/01, effective 12/6/01)

WAC 137-28-260   Serious infractions.  

(1) Assault/threatening actions/causing injury to another person
501 - Committing homicide.
502 - Aggravated assault on another offender.
503 - Extortion, blackmail, or demanding or receiving money or anything of value in return for protection against others, or under threat of informing.
505 - Fighting with any person.
506 - Threatening another with bodily harm or with any offense against another person, property or family.
508 - Throwing objects, materials, substances or spitting at staff, visitors, or other inmates.
511 - Aggravated assault on a visitor.
((520 - Unauthorized demonstration, practice or use of martial arts.))
521 - Taking or holding any person hostage.
588 - Causing a valid and documented threat of transmission of a contagious disease to any person due to intentional, negligent or reckless action.
(([599 - Careless behavior that causes injury to another offender.]))
604 - Aggravated assault on a staff member.
611 - Sexual assault on a staff member.
633 - Assault on another offender.
635 - Sexual assault on another offender.
663 - Using physical force, intimidation or coercion against any person.
(([699 - Careless behavior that causes injury to a staff member.]))
704 - Assault on a staff member.
711 - Assault on a visitor.
717 - Causing a threat of injury to another person by (([disregard of orders, careless behavior] [resisting orders])) resisting orders, resisting assisted movement or physical efforts to restrain.
777 - Causing injury to (([a staff member] [another person])) another person by resisting orders, resisting assisted movement or physical efforts to restrain.
(([799 - Careless behavior that causes injury to a visitor.]))
Unauthorized possession
559 - Gambling; possession of gambling paraphernalia.
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 components thereof.
620 - Receipt or possession of contraband during participation in off-grounds or outer perimeter activity or work detail.
660 - Unauthorized possession of money, stamps, or negotiable instruments, the value of which is five dollars or more.
702 - Possession, manufacture or introduction of an unauthorized tool.
736 - Possession, manufacture or introduction of unauthorized keys.
738 - Possession of the clothing of a staff member.
(([739 - Possession of personal information about currently employed staff, contractors or volunteers, or their immediate family members, including, but not limited to: Social Security numbers, home addresses or telephone numbers, drivers 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.]))
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, drivers 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.
Tattooing
710 - Being tattooed while incarcerated, tattooing another, or possessing tattoo paraphernalia.
Theft/possession of stolen property
555 - Theft of property or possession of stolen property.
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.
Forgery
654 - Counterfeiting, forging, altering or unauthorized reproduction of any document, article of identification, money, security, or official paper.
Setting fire, damaging or destroying property
553 - Setting a fire.
554 - Mutilating, altering, defacing or destroying any item, the value of which is ten dollars or more and that is not the personal property of the inmate.
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.
600 - Tampering with, damaging, blocking, or interfering with any locking or security device.
720 - Flooding a cell or other area of the institution.
Inciting others/participation in unacceptable group behavior
650 - Rioting.
651 - Inciting others to riot.
652 - Engaging in or inciting a group demonstration.
(([661 - Performing or taking part in an unauthorized marriage.]))
682 - Engaging in (([or inciting])) or inciting an organized work stoppage.
708 - Organizing or participating in an unauthorized group activity or meeting.
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.
746 - (([Participating] [Engaging])) Engaging in or inciting (([others to go on a] [an organized])) an organized hunger strike.
Inappropriate sexual behavior
504 - Engaging in sexual acts with others with the exception of spouses during approved extended family visits.
659 - Sexual harassment; any word, action, gesture or other behavior that is sexual in nature and that would be offensive to a reasonable person.
728(((b))) - Possession of any written, photographic or hand-drawn material that depicts a sexually explicit act as defined in WAC 137-28-160.
750 - Indecent exposure.
Providing false statements
551 - (([Lying] [Providing false information])) Providing false information to (([the] [a])) a disciplinary hearing officer or (([lying])) on a disciplinary appeal.
552 - Causing an innocent person to be penalized or proceeded against by (([lying] [providing false information])) providing false information.
706 - (([Lying or] [G]iving)) Giving false information about proposed community residence when proposing a release plan, community placement, etc.
Interfering with staff/impersonating
558 - Interfering with staff members, medical personnel, fire fighters, or law enforcement personnel in the performance of their duties.
605 - Impersonating any staff member, other inmate or visitor.
Failure to follow orders and rules
509 - Refusing a direct order by any staff member to proceed to or disperse from a particular area.
556 - Refusing to submit to or cooperate in a search when ordered to do so by a staff member.
557 - Refusing to participate in an available education or work program or other mandatory programming assignment.
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.
658 - Failing to comply with any administrative or posthearing sanction imposed for committing any general or serious infraction.
724 - Refusing a cell or housing assignment.
745 - Refusing a transfer to another facility.
Counts/unauthorized absence
653 - Causing an inaccurate count by means of unauthorized absence, hiding, concealing ones self or other form of deception or distraction.
Escape/attempted escape
525 - Violating conditions of furlough.
550 - Escape or attempted escape.
560 - Unauthorized possession of items or materials likely to be used in an escape attempt.
Committing crimes/excess infractions
507 - Committing any act that is a felony under state or federal law that is not otherwise included in these rules.
517 - Committing any act that is a misdemeanor under local, state, or federal law that is not otherwise included in these rules.
657 - Being found guilty of four or more general infractions which have been reported in writing arising out of separate incidents, all of which occur within a six-month period.
Unacceptable communication
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 and/or documented disciplinary actions.
Misuse of controlled substances, drugs, alcohol and related programs
603 - Possession, introduction, or transfer of any narcotic, controlled substance, illegal drug, unauthorized drug or drug paraphernalia.
606 - Possession of tobacco products and/or matches in close/maximum housing units where strictly prohibited.
607 - Refusing to submit to a urinalysis and/or failure to provide a urine sample when ordered to do so by a staff member.
608 - Refusing or failing to submit to a breathalyzer or other standard sobriety test when ordered to do so by a staff member.
610 - Unauthorized accumulation of prescribed medication greater than a single or daily dose.
655 - Making intoxicants, alcohol, controlled substances, narcotics, or the possession of ingredients, equipment, items, formulas or instructions that are used in making intoxicants, alcohol, controlled substances, or narcotics.
707 - Possession, introduction, or transfer of any alcoholic or intoxicating beverage.
716 - Unauthorized use of drugs, alcohol or other intoxicants.
752 - Receiving a positive test for use of unauthorized drugs, alcohol, or other intoxicants.
Soliciting/fraud
656 - Giving, offering or receiving from any person a bribe or anything of value for an unauthorized favor or service.
662 - Soliciting goods or services for which the provider would expect payment when the inmate knows or should know that no funds are available to pay for those goods or services.
714 - 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 ten dollars or more.
740 - Fraud, embezzlement, or obtaining goods, services, money, or anything of value under false pretense.
Creating an emergency situation
712 - Attempted suicide or self-mutilation.
742 - Creating a false emergency by feigning illness when contrary to medical/mental health screening results.
744 - Making a bomb threat.
(2) In determining whether a # 728(((b))) infraction or a # ((728(a))) 328 infraction pursuant to WAC 137-28-220 should be charged, the infracting officer shall consider mitigating factors as defined in WAC 137-28-160.

[01-22-094, 137-28-260, filed 11/6/01, effective 12/6/01. Statutory Authority: RCW 72.01.090. 00-10-079, 137-28-260, filed 5/2/00, effective 6/2/00; 97-03-041, 137-28-260, filed 1/10/97, effective 2/4/97. 95-15-044, 137-28-260, filed 7/13/95, effective 8/15/95.]


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

WAC 137-28-310   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 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 #((728(a))) 328 or #728(((b))) 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(((b))) serious infraction to a #((728(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. 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 00-10-079, filed 5/2/00, effective 6/2/00)

WAC 137-28-350   Sanctions -- Authority to impose.   (1) If the hearing officer determines that an inmate is guilty of a serious infraction, he/she may impose one or more of the following sanctions:

(a) Any of the sanctions available for general infractions;

(b) Any of the sanctions available under DOC 320.150;

(c) Loss of a privilege or privileges as specified by the hearing officer not to exceed: Thirty days on a first offense, ninety days on a second offense, and one hundred eighty days on a third offense, within a one-year period;

(d) Evening lockup or confinement to quarters for ten days;

(e) Weekend and/or holiday lockup or confinement to quarters for a period of one or more weekends but not to exceed twelve consecutive weekends per incident. For purposes of this rule, a "weekend" shall begin at the end of the Friday workday and terminate at the beginning of the Monday workday;

(f) Confinement to quarters except for meals, or with meals in cell, with or without curtailment of job assignment for a period not to exceed thirty days;

(g) Recommendation to the unit team/classification committee/assignment officer for reconsideration of custody classification or program change;

(h) Recommendations to the classification committee/classification officer for transfer to another institution when, as a result of the infraction committed, the inmate is unable to function in the institution of present confinement, or if other disciplinary methods have been attempted and failed;

(i) Confinement on segregation status for a period not to exceed thirty consecutive days;

(j) Confinement on isolation status for a period not to exceed ten consecutive days; however, where a serious infraction occurs during a period of isolation imposed under this rule, additional periods of isolation not to exceed ten days may be imposed. In situations where an inmate is in isolation for more than ten consecutive days, the director's prior approval is required unless the inmate is released from isolation for at least seventy-two consecutive hours between the end of one isolation sanction and the beginning of another;

(k) Restitution;

(l) Recommendation to the superintendent that he/she not certify good conduct time credit for an inmate subject to the jurisdiction of the indeterminate sentence review board, pursuant to RCW 9.95.070 or that he/she approve the denial of good conduct time credit for those inmates not under the jurisdiction of the board.

(i) The recommendation will be consistent with guidelines established by the secretary of the department of corrections.

(ii) Any sanctions for loss of good conduct credits in excess of the guidelines established by the secretary of the department of corrections must have final approval by the deputy secretary.

(iii) For inmates not under the board's jurisdiction, all awards of good conduct time shall be considered tentative and therefore all good conduct time credits earned or to be earned may be addressed under this rule;

(m) Recommendation to the indeterminate sentence review board for a disciplinary hearing or reconsideration of minimum term should occur only with infractions providing for actual time loss of twelve months or more and consistent with guidelines established by the department;

(n) Interruption of visitation between the offender and a specified individual(s) for a period of up to one hundred eighty consecutive days when there has been an infraction for visit related behavior or behavior that presents a security or safety threat. In cases of multiple or very serious offenses, recommendations may be made to the superintendent for extended or permanent loss of the privilege of visitation with a specified individual(s);

(o) Restrictions, interruption or termination of correspondence, and/or telephone privileges with specified individuals. Sanctions for offense(s) within any one-year period may not exceed: Up to ninety consecutive days for the first offense, one hundred eighty consecutive days for the second offense and permanent loss for the third offense. Termination of correspondence and/or telephone privileges may be permanent for the first offense if:

(i) The recipient so requests; or

(ii) A parent or guardian of the recipient, if a minor or an incompetent person, so requests; or

(iii) A felony was involved in the incident; or

(iv) If the contact violates a court order;

(p) The sanction for infraction #557 shall be the loss of available earned release credits and other privileges as outlined in division directives. Progressively more severe sanctions will be utilized for subsequent infractions #557.

(2) If the hearing officer determines that more than one infraction occurred as a result of the same incident, he/she shall not impose consecutive sanctions for the separate infractions but shall consider them together and impose penalties for the group of infractions.

(3) The hearing officer may suspend the execution of a disciplinary sanction for a fixed period of time, not to exceed three hundred sixty-five consecutive days, subject to the good behavior of the inmate or to meeting other conditions as specified by the hearing officer. If the subsequent behavior of the inmate is appropriate, the hearing officer may, at or before the end of the fixed period, cancel the sanction. A suspended sanction may be imposed if the inmate has been found guilty of a general or serious infraction or of violating the conditions attached to the original suspension. A suspended sanction may be imposed by the hearing officer following notice to, and an in-person meeting with, the inmate.

(4) The hearing officer may review any decision he/she previously made and may modify downward any sanction previously imposed.

(5) ((Sanctions shall not be imposed while an appeal from the hearing officer's decision is under consideration by the superintendent.

(6))) In all cases, regardless whether an appeal is taken, the superintendent may review a sanction imposed and may reduce its severity.

(((7))) (6) Nothing in this section limits the superintendent's discretion to grant, deny, suspend, or revoke any privilege.

[Statutory Authority: RCW 72.01.090. 00-10-079, 137-28-350, filed 5/2/00, effective 6/2/00; 97-03-041, 137-28-350, filed 1/10/97, effective 2/4/97. 95-15-044, 137-28-350, filed 7/13/95, effective 8/15/95.]


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

WAC 137-28-380   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(((b))) serious infraction to a #((728(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) ((Pending the decision of the superintendent, disciplinary sanctions shall not be imposed on the inmate.

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

[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.]

Washington State Code Reviser's Office