Md. Code Regs. 12.03.01.31

Current through Register Vol. 51, No. 12, June 14, 2024

Section 12.03.01.31 - Disciplinary Proceeding Procedures - Post Disciplinary Proceedings Phase - Managing Official's Review

A. Review by the Managing Official.

(1) The managing official, or a designee, shall conduct a review of the defendant's disciplinary proceeding.

(2) The managing official may assign a designee to conduct the required review.

(3) The managing official, or designee, shall review a defendant's disciplinary proceeding before the hearing officer even if the ultimate disposition is an informal resolution.

(4) The informal resolution offered by staff and accepted by the defendant are not required to be reviewed.

(5) A managing official's, or a designee's, review is a review on the record and not a de novo or new hearing.

(6) The managing official may not:

(a) Reconsider the evidence in the record of the disciplinary proceeding;

(b) Substitute the managing official's, or a designee's, judgment for that of the hearing officer's or make de novo or new factfindings as to the inmate rule violation charged; and

(c) Render a de novo or new decision in lieu of the decision by the hearing officer.

(7) The managing official, or a designee, shall document the review in the written record of the disciplinary proceeding.

(8) The managing official, or a designee, shall complete the review of the hearing officer's decision and sanction, if imposed, regarding the inmate rule violation charged within 30 calendar days of the date the defendant received the hearing officer's decision, but after the 15 calendar day time period for the filing of an appeal by the defendant has elapsed.

(9) The managing official, or a designee, may conduct an immediate review of the hearing officer's decision without waiting for the expiration of the defendant's appeal period:

(a) When the disposition of one or more of the inmate rule violations is:

(i) A dismissal;

(ii) A Not Guilty finding;

(iii) A finding that the defendant is or was Not Competent; or

(iv) An informal resolution accepted by the defendant; or

(b) The managing official, or a designee, reduces a sanction imposed by the hearing officer.

(10) The managing official, or a designee, may remand the hearing officer's decision to the hearing officer for written clarification by the hearing officer of the decision or sanction regarding the:

(a) Disciplinary proceeding procedures;

(b) Evidence weighed and considered;

(c) Findings of fact;

(d) Decision as to the inmate rule violation charged; and

(e) Sanction, if imposed.

(11) The time and procedure requirements for the managing official's review:

(a) Shall be suspended pending the managing official's, or a designee's, remand; and

(b) May not resume until the managing official, or a designee, receives the hearing officer's written response.

B. Authority and Action of the Managing Official.

(1) A managing official, or a designee, conducting the review of the hearing officer's decision shall:

(a) Review the record of the disciplinary proceeding and determine from that record if a reasonable individual could have reached the decision rendered by the hearing officer based on the evidence presented at the disciplinary proceeding;

(b) Consider an alleged time or procedural violation under this chapter, when raised in an appeal by the defendant, facility representative or facility staff; and

(c) Determine if the sanctions imposed were in compliance with the requirements of this chapter.

(2) The managing official, or a designee, when conducting the review of the hearing officer's decision regarding an inmate rule violation resulting in a guilty finding and, if imposed, the sanction, may, without explanation:

(a) Affirm the hearing officer's decision and, if imposed the sanction;

(b) Vacate the guilty finding and the sanction imposed regardless of the category of the inmate rule violation charged or procedural requirement of this chapter, and enter an incident report in the defendant's case record as the disposition for the inmate rule violation charged;

(c) Vacate the guilty finding and the sanction imposed and enter a Not Guilty disposition in the defendant's case record for the inmate rule violation charged;

(d) Vacate the guilty finding and the sanction imposed and enter a Not Competent disposition in the defendant's case record for the inmate rule violation charged; or

(e) Affirm the hearing officer's decision, but elect to modify the sanction imposed for the inmate rule violation resulting in a guilty finding by:

(i) Reducing the sanction period imposed by the hearing officer regardless of whether the reduced sanction is in compliance with or below the minimum sanction or sanction period required by a regulation of this chapter; or

(ii) Reducing an informal disposition with sanction to an incident report with no sanction.

(3) The managing official, or a designee, may not increase the sanctions imposed by the hearing officer.

(4) The managing official, or a designee, may appeal the hearing officer's decision to the Secretary, or a designee, and request the Secretary, or a designee, to reverse the hearing officer's decision and remand the inmate rule violation charged for a de novo or a new disciplinary proceeding when the managing official, or a designee, concludes the hearing officer's decision was erroneous due to one or more of the following circumstances:

(a) An arbitrary or capricious decision;

(b) A clearly erroneous decision;

(c) An erroneous interpretation of a policy, time requirement, or procedure;

(d) The decision relied on evidence alleged or found to be fraudulent or a misrepresented;

(e) The decision was rendered without consideration of evidence that was either presented or not presented at the defendant's disciplinary hearing;

(f) The sanction was not in compliance with minimum requirements of regulations in this chapter; or

(g) A disposition of Not Competent was entered and there is new evidence that the defendant is competent to participate in the disciplinary proceeding or was competent at the time of the offense.

(5) The managing official's, or a designee's, recommendation for reversal and new disciplinary proceeding shall include the reason for the appeal.

(6) The time period and procedure requirements for the managing official's, or a designee's, review under this regulation shall:

(a) Be suspended pending the managing official's, or a designee's, appeal to the Secretary, or a designee; and

(b) Resume on the date the Secretary's, or a designee's, written decision regarding the managing official's, or a designee's, appeal is received by the managing official, or a designee.

C. Notification of the Managing Official's Review.

(1) Staff shall serve the documentation of a completed managing official's, or a designee's, review on the defendant within 30 calendar days of the date the defendant was previously served the hearing officer's decision.

(2) If the defendant does not receive the managing official's, or a designee's, review under the 30 calendar day time requirement the:

(a) Review process is considered to be complete; and

(b) Hearing officer's decision and sanction, if imposed, is affirmed.

Md. Code Regs. 12.03.01.31

Regulation .31 adopted effective 45:13 Md. R. 668, eff. 7/2/2018