WSR 04-05-076



[ Filed February 17, 2004, 2:46 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-01-167.

Title of Rule: Amendments to WAC 137-28-260 Serious infractions.

Purpose: Refine the definitions of two serious infractions numbers 606 and 707.

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

Statute Being Implemented: RCW 72.09.130 and 9.94.070.

Summary: The amendments make the possession of tobacco, or trafficking in tobacco products or paraphernalia an infraction.

Reasons Supporting Proposal: These changes are necessary to maintain discipline within state correctional institutions. The opportunity for public comment and review of the proposed serious infraction amendments furthers the department's intent to implement its authority delegated pursuant to RCW 72.09.130 and 9.94.070.

Name of Agency Personnel Responsible for Drafting: John Nispel, P.O. Box 41114, Olympia, WA 98504-1114, (360) 586-2160; Implementation and Enforcement: Eldon Vail, Deputy Secretary, P.O. Box 41118, Olympia, WA 98504-1118, (360) 753-1502.

Name of Proponent: Washington State Department of Corrections, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: The proposed changes will enhance discipline in the institutions operated by the department, further refining and clarifying disciplinary behavior. The following changes are proposed: WAC 137-28-260 Serious infractions, amend infractions number 606 to include possession of tobacco paraphernalia and number 707 to include tobacco, tobacco products or paraphernalia.

Proposal Changes the Following Existing Rules: See Explanation of Rule above.

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

RCW 34.05.328 does not apply to this rule adoption. 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).

Hearing Location: Department of Corrections, 2nd Floor Conference Room, 410 West 5th Street, Olympia, WA 98504, on March 23, 2004, at 10 a.m.

Assistance for Persons with Disabilities: Contact John R. Nispel by March 16, 2004, (360) 586-2160.

Submit Written Comments to: John R. Nispel, Rules Coordinator, Department of Corrections, P.O. Box 41114, Olympia, WA 98504-1114, fax (360) 664-2009, by March 23, 2004.

Date of Intended Adoption: March 23, 2004.

February 17, 2004

Patria N. Robinson-Martin

for Joseph D. Lehman



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

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.
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.
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.
704 - Assault on a staff member.
711 - Assault on a visitor.
717 - Causing a threat of injury to another person by resisting orders, resisting assisted movement or physical efforts to restrain.
777 - Causing injury to another person by resisting orders, resisting assisted movement or physical efforts to restrain.
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, 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.
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.
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.
682 - Engaging in 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 - Engaging in or inciting 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 - 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 - Providing false information to a disciplinary hearing officer or on a disciplinary appeal.
552 - Causing an innocent person to be penalized or proceeded against by providing false information.
706 - 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)), or tobacco paraphernalia.
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, or any tobacco, tobacco products or paraphernalia.
716 - Unauthorized use of drugs, alcohol or other intoxicants.
752 - Receiving a positive test for use of unauthorized drugs, alcohol, or other intoxicants.
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 infraction or 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.

[Statutory Authority: RCW 72.01.090, 72.09.130, and 9.94.070. 02-12-023, 137-28-260, filed 5/28/02, effective 6/28/02. 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.]

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