N.Y. Comp. Codes R. & Regs. tit. 7 § 701.6

Current through Register Vol. 46, No. 45, November 2, 2024

Section 701.6 - Procedural safeguards

(a) Advisors. An inmate may present or appeal a grievance unaided, or may be advised or assisted by a staff member or another inmate of his/her choosing subject to the restrictions set forth in sections 701.2(h) and 701.7(c)(3) of this Part. At the discretion of the superintendent, inmate advisors for keeplocked inmates may be limited to inmate clerks or inmate representatives on the IGRC and keeplocked inmates may be prohibited from serving as advisors to other inmates.

(b) Reprisals prohibited. No reprisals of any kind shall be taken against an inmate or employee for good faith utilization of this grievance procedure. An inmate may pursue a complaint that a reprisal occurred through the grievance mechanism. A grievant shall not receive a misbehavior report based solely upon an allegedly false statement made by the inmate to the grievance committee.

(c) Objection to IGRC representative. No inmate will take part in the resolution of a grievance over a grievant's objection. If a grievant objects to both inmate representatives and both alternate inmate representatives, then the two staff representatives shall hold the hearing. An inmate representative may not function as a voting representative at a hearing on his/her grievance. An alternate inmate representative must be utilized. A staff representative may not function as a voting representative at a hearing on a grievance in which that staff person is a direct party. An alternate staff representative must be utilized.

(d) IGRC access/movement within the institution.

(1) A pass system (institutional or point to point) which permits inmate representatives, and grievance clerks to perform their IGP duties shall be developed in accordance with specifications established by the superintendent. Security restrictions will preclude inmates from entering certain areas of the facility.

(2) At any facility where a pass system is not feasible, the superintendent must develop a procedure to ensure that the IGRC can obtain necessary information, keep within established time frames and maintain confidentiality. This procedure must be in writing and approved by the director, IGP.

(3) Upon written recommendation of the IGP supervisor and with the approval of the director, IGP, the superintendent may restrict or remove a specific inmate's IGRC pass privileges.

(e) IGRC interviews of employees.

(1) Formal interviews with staff members, if necessary to an IGRC investigation, should be conducted jointly by an inmate and a staff representative whenever feasible. Employees should be questioned in a diplomatic and non-adversarial manner.

(2) If inmate representatives cannot accompany staff representatives on an investigation because of security restrictions, and if interviews cannot be conducted in the grievance office or through less formal means (e.g., by telephone), the inmate representatives shall provide the staff representatives with the questions they would like answered. The staff representatives shall make every effort to obtain answers for the inmate representatives.

(f) Code of ethics.

(1) A code of ethics (see section 701.11 of this Part) for IGRC staff and inmate representatives, clerks, and chairpersons has been established to strengthen the credibility and effectiveness of the IGP. Violations of this code may result in removal from the IGP.

(2) Inmate representatives may be removed from the committee only in accordance with procedures set forth in section 701.4(c) of this Part.

(3) The IGP supervisor is responsible for insuring that the full-time and alternate IGRC representatives have read, understand and received a copy of the code of ethics.

(g) Time limit exceptions and extensions.

(1) Time limit for filing a grievance or appeal:

(i) An inmate may request an exception to the time limit for filing a grievance, or for filing an appeal to the superintendent or to CORC. Such a request shall be in writing and shall be submitted to the grievance clerk with the grievance or appeal the inmate wishes to file.

(a) The IGP supervisor may grant an exception to the time limit for filing a grievance based on mitigating circumstances (e.g., timely attempts to resolve a complaint informally by the inmate, etc.). An exception to the time limit may not be granted if the request was made more than 45 days after an alleged occurrence.

(b) The IGP supervisor may grant an exception to the time limit for filing an appeal of an IGRC or superintendent's decision based on mitigating circumstances (e.g., failure to implement action required by the IGRC or superintendent's decision within 45 days, etc.). An exception to the time limit may not be granted if the request was made more than 45 days after the date of the decision unless the late appeal asserts a failure to implement the decision.

(ii) An inmate may pursue a complaint that an exception to the time limit was denied by filing a separate grievance.

(2) Time limit for IGP action. Time limit extensions may be requested at any level of review (e.g., time limits for holding an IGRC hearing, answering a grievance or an appeal, etc.), but such extensions may be granted only with the written consent of the grievant. Absent such extension, matters not decided within the time limits may be appealed to the next step.

(h) Processing grievances and appeals after transfer.

(1) Any response to a grievance filed by an inmate who has been transferred shall be mailed directly to that inmate, via privileged correspondence, at his/her new facility or location.

(2) An inmate transferred to another facility may continue an appeal of any grievance. If the grievant wishes to appeal, he or she must mail the signed appeal form back to the IGP supervisor at the facility where the grievance was originally filed within seven calendar days after receipt. The IGP supervisor will refer it to the facility grievance clerk for processing.

(i) Processing grievances pending at release or parole. A grievance pending at the time an inmate has been released or paroled shall be processed as follows:

(1) If the IGRC majority determines that the grievance affects other members of the facility population and encompasses an issue that has not been reviewed by CORC within a year, the IGRC shall provide a recommendation and forward the case to the superintendent for a determination. If the grievance affects only the grievant and encompasses an issue that has been reviewed by CORC within a year, it is subject to dismissal under section 701.5(b)(4) of this Part.

(2) The superintendent shall answer any grievance received pursuant to paragraph 1 above and any appeal pending at the superintendent's level. The superintendent shall make a recommendation in the case of any departmental grievance (as defined in section 701.5[c][3][i] of this Part) and forward it to the IGP supervisor. The superintendent shall make a determination in all other cases.

(3) Upon receipt of the superintendent's response, the IGP supervisor shall forward all case materials to the CORC for a final disposition.

(j) Procedures for transient inmates. Each correctional facility housing a reception/classification/transit inmate population must develop and implement a written procedure insuring all inmates access to the IGP. This procedure must be approved by the director, IGP.

(k) File maintenance/confidentiality.

(1) Grievance files will be maintained in a specific area for use by the IGRC and the grievance clerk. No copies of grievance documents may go into the grievant's central file or facility file without the grievant's direct written consent. Likewise, no copies of grievance documents may go into an employee's file without the direct written consent of the employee. No grievance documents shall be disseminated to persons other than the grievant, a direct party, or an individual involved in the review process without the approval of the IGP supervisor. Any requests for grievance documents by the grievant or any direct party may be addressed through the Freedom of Information Law (FOIL) as outlined in Part 5 of this Title.

(2) The superintendent is responsible to ensure the confidentiality and maintenance of grievance records. Complete grievance records must include the original grievance, responses from each level of review, the investigation, referenced documentation and verification of implementation, when appropriate.

(3) Grievance files shall be preserved for the current calendar year, plus the previous four calendar years.

(l) IGRC reference materials. The IGRC at each facility is responsible for maintaining an up-to-date set of code "A B" departmental directives and a set of the IGP monthly index of written opinions. A copy of the IGP monthly index of written opinions must also be maintained in the facility law library.

(m) Emergencies. The IGP supervisor shall refer any grievance of an emergency nature directly to the appropriate response level (superintendent or CORC) having authority to issue an immediate or expeditious and meaningful response. An emergency shall include, but is not limited to, a situation, action, or condition in which an inmate's or an employee's health, safety, or welfare is in serious threat or danger. The supervisor will determine if a grievance falls within this category.

N.Y. Comp. Codes R. & Regs. Tit. 7 § 701.6